The Criminal Prosecution and Capital Punishment of Animals

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Title: The Criminal Prosecution and Capital Punishment of Animals
Author: Evans, Edmund P.
Language: English
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THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS

_BY THE SAME AUTHOR_

ANIMAL SYMBOLISM IN ECCLESIASTICAL ARCHITECTURE. Fully illustrated. In one
Vol. Crown 8vo. Price 9_s._

EVOLUTIONAL ETHICS AND ANIMAL PSYCHOLOGY. In one Vol. Crown 8vo. Price
9_s._

LONDON: WILLIAM HEINEMANN

[Illustration: Execution of a Sow.]

THE CRIMINAL PROSECUTION AND
CAPITAL PUNISHMENT OF ANIMALS

BY E. P. EVANS
AUTHOR OF
“ANIMAL SYMBOLISM IN ECCLESIASTICAL ARCHITECTURE,”
“EVOLUTIONAL ETHICS AND ANIMAL PSYCHOLOGY,” ETC., ETC.

[Illustration]

LONDON
WILLIAM HEINEMANN
MCMVI

CONTENTS

INTRODUCTION

Sources--Amira’s distinction between retributive and
preventive 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--Born malefactors among beasts--The theory
of punishment in modern criminology _p._ 1

CHAPTER I

BUGS AND BEASTS BEFORE THE LAW

Criminal prosecution of rats--Chassenée appointed to defend
them--Report of the trial--Chassenée 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 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 of judicial
proceedings against insects--Important trial of weevils at
St. Jean-de-Maurienne extending over more than eight
months--Untenableness of Ménebréa’s theory--Summary of the
pleadings--Futile attempts at compromise--Final decision
doubtful--St. Eldrad and the snakes--Views of Thomas
Aquinas--Distinction between 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 Père 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 explanation of them--Charcot on
faith-cures--Why not the duty of the Catholic Church to
inculcate kindness to animals--Zoölatry a form of
demonolatry--Gnats especially dangerous devils--
Bodelschwingh’s discovery of the _bacillus infernalis_--
Gaspard Bailly’s disquisition with specimens of plaints,
pleas, etc.--Ayrault protests against such proceedings--
Hemmerlein’s treatise on exorcisms--Criminal prosecution of
field-mice--Vermin excommunicated 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--
Rhyming 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--Bailly’s bill of
expenses--An ox decapitated for its demerits--Punishment 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--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 Plaideurs_; _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
insurrection--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 Maryland 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._ 18

CHAPTER II

MEDIÆVAL AND MODERN PENOLOGY

Recent change in the spirit of criminal jurisprudence--
Mediæval 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--Mediæval and modern
conceptions of culpability--Problems of psycho-pathological
jurisprudence--Degrees of mental vitiation--Italians
pioneers in the scientific study of criminality--Effects of
these speculations upon legislation--Barbarity of mediæval
penal justice--Gradual abolition of judicial torture--Cruel
sentence pronounced by Carlo Borromeo--“Blue Laws” 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 æsthetic sense--
Theories of the origin and nature of crime--Intelligence not
always to be measured by the size of the encephalon--
Remarkable exceptions in Gambetta, Bichat, Bischoff and Ugo
Foscolo--Advanced 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 defining
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 _p._ 193

APPENDIX

A. De Actis Scindicorum Communitatis Sancti Julliani
agentium contra Animalia Bruta ad formam muscarum volantia
coloris viridis communi voce appellata Verpillions seu
Amblevins _p._ 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 1519 _p._ 307

D. Admonition, Denunciation, and Citation of the Inger by
the Priest Bernhard 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,
commending the action of Parson Greysser in putting the
sparrows under ban, issued at Dresden in 1559 _p._ 311

F. Chronological List of Excommunications and Prosecutions
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 tournois for the execution
of an infanticidal sow, and also ten sous tournois for a new
glove _p._ 335

H. Receipt, dated September 24, 1394, in which Jehan Micton
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 _p._ 336

I. Attestation of Symon de Baudemont, Lieutenant of the
Bailiff of Nantes 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 _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 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 _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 _p._ 342

L. Sentence pronounced by the Mayor of Loens de Chartres on
the 12th of September, 1606, condemning Guillaume Guyart to
be hanged and burned together with a bitch _p._ 344

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

N. Sentence pronounced, April 18, 1499, in a criminal
prosecution instituted before the Bailiff of the Abbey of
Josaphat, in the Commune of Sèves, 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 _p._ 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-Montcornet _p._ 354

P. Sentence pronounced, March 27, 1567, by the Royal Notary
and Proctor of the Bailiwick and 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 Beaupré, 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 Machern near Leipsic, July 20, 1621 _p._ 361

BIBLIOGRAPHY _p._ 362

INDEX _p._ 373

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 Mediæval
Punishment,” which appeared in _The Atlantic Monthly_, in August and
September 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 Schweiz_ (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
extensive and exceedingly valuable researches of Berriat-Saint-Prix and M.
L. Ménebréa, and the _Consilium Primum_ of Bartholomew Chassenée, cited in
the appended bibliography. Professor Von Amira is a very distinguished and
remarkably keen-sighted jurisprudent and treats the matter exclusively
from a jurisprudential 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 Thierprocesse; the former were capital punishments inflicted 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 cultivated fields by means of exorcism
and excommunication. Animals, which were in the service of man, could be
arrested, tried, convicted and executed, like any other members of his
household; 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, 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 intervention of the Church and the
exercise of its supernatural 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 propagated, recourse
was had to exorcisms and be-sprinklings with holy water.

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 threatened, 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 noxious
vermin are assumed to have been sent at the instigation of Satan
(_instigante sathana, per maleficium diabolicum_), and are denounced and
deprecated as snares of the devil and his satellites (_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 permissible 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 recognized 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 instances
of both kinds of treatment.

It was also as a protection against evil spirits that the penalty of death
was inflicted upon 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 creeping things, were devils in
disguise; but the homicide, if it were permitted to go unpunished, was
supposed to furnish occasion for the intervention of devils, who were
thereby enabled to take possession 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 Verwaltung des Exorcistats nach
Massgabe der römischen 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 undetected 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, however 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 vexations of this sort. The
infestation thus produced 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 sacerdotal 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 unencumbered by devils as well as by debts, otherwise 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 generations 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, as
mediæval 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 corrumpens_ resulting from diabolical
infestation 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
enmity with all supernatural explanations of 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
_benedictiones locorum_.

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 and the admission of fresh
air makes it quite easy to cast out the demons. A German veterinarian, 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 mediæval 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
demoniacally 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 accursed.” It was the same horror of aiding
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 Osenbrüggen (_Studien zur deutschen und
schweizerischen Rechtsgeschichte._ Schaffhausen, 1868, p. 139-149),
endeavours 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 personification 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 mediæval times
domestic animals were regarded as members of the household and entitled to
the same legal protection as human vassals. In the Frankish capitularies
all beasts of burden or so-called juments were included in the king’s ban
and enjoyed the peace guaranteed by royal authority: _Ut jumenta pacem
habent 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 rights and inferentially endowed with human
responsibilities. 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 householder 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 excommunication 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. Osenbrüggen’s
statement that the cock condemned to be burned at Bâle 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 therefore diabolic creature; the fatal
cockatrice, which was supposed to issue from this egg when hatched, and
the use which 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 enactment 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
therefore 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 prosecuting 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 Levitical legislator. The extension of Christianity beyond the
boundaries of Judaism and the conversion of Gentile nations led to its
gradual but radical transformation. The propagation of the new and
aggressive faith among the Greeks and Romans, and especially among the
Indo-Germanic tribes of Northern Europe, necessarily deposed, degraded and
demonized the ancestral deities of the proselytes, who were taught
henceforth 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 creature. That this doctrine is
still held and this policy still pursued by the bishops and other clergy
of the Roman Catholic Church, no one familiar with the literature of the
subject can deny.

Besides the manuals and rituals already cited, consult, for example, _Die
deutschen Bischöfe und der Aberglaube_: 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 göttlichen Herzens Jesu_, 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
psychiatrical investigations, would seem to obscure and even to obliterate
the line of distinction 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 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
anatomical, physiological or psychological conditions 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 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 according to these descriptions. It is
taken from Arthur Mangin’s _L’Homme et la Bête_ (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 Damhouder’s _Praxis Rerum Criminalium_
(Antverpiæ, 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 Pecuario” 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 excommunications during the past ten
centuries, so far as we have been able to discover any record of them.

The bibliography, 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 ausländischen Literatur_ (Jena, 1830, LXV. pp. 152-55),
Jörgensen’s _Nogle Frugter af mit Otium_ (Kopenhagen, 1834, pp. 216-23);
Cretella’s “Gli Animali sotto Processo,” in _Fanfulla della Domenica_
(Florence, 1891, No. 65), all three based upon the archival researches of
Berriat-Saint-Prix and Ménabréa, and Soldan’s “La Personification des
Animaux in Helvetia,” in _Monatsschrift der Studentenverbindung Helvetia_
(VII. pp. 4-17), which is a mere restatement of Osenbrüggen’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.

CHAPTER I

BUGS AND BEASTS BEFORE THE LAW

It is said that Bartholomew Chassenée,[1] a distinguished French jurist of
the sixteenth century (born at Issy-l’Evêque in 1480), made his reputation
at the bar as counsel for some rats, which had been put on trial before
the ecclesiastical 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 Chassenée to defend them.

In view of the bad repute and notorious guilt of his clients, Chassenée
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, 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 Chassenée 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 Chassenée was reminded of the legal
principle thus laid down and urged to apply it in favour of clients more
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 exterminating the Waldenses in the villages of Cabrières and
Merindol was under discussion. One of the members of the tribunal, a
gentleman from Arles, 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 safeguards 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. Chassenée 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: _Recherches_, etc.
(_vide_ Bibliography), p. 18.]

In the report of the trial published in the _Thémis Jurisconsulte_ for
1820 (Tome I. pp. 194 sqq.) by Berriat Saint-Prix, on the authority of the
celebrated Jacques Auguste De Thou, President of the Parliament of Paris,
the sentence pronounced by the official is not recorded. But whatever the
judicial decision may have been, the ingenuity and acumen with which
Chassenée conducted the defence, the legal learning which he brought to
bear upon the case, and the eloquence of his plea enlisted the public
interest and established his fame as a criminal lawyer and forensic
orator.

Chassenée 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 primum, quod tractatus jure dici potest, propter multiplicem et
reconditam doctrinam, ubi luculenter et accurate tractatur quaestio illa:
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 property, 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.

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, probably a kind of locust or harvest-fly. The request was
granted, and the pernicious creatures were duly accursed. Chassenée now
raises the query whether such a thing may be rightfully and lawfully done
(_sed an recte 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 understood 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 appointed 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 constitutes an anathema and how does it differ from an
excommunication.” Chassenée’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 competence 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, mediæval 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
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 rectitude, takes whatever evidence is
at hand, and never tries to pack the witness-box.

His knowledge of obscure and now utterly forgotten authors, secular and
ecclesiastic, is immense. Like so many scholars of his day he was
prodigiously learned, without being remarkable 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
argumentations, 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 illustrations 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 exclusively in the records and traditions of the past, in the
so-called “wisdom of ages,” renders him peculiarly liable to regard every
act and utterance of antiquity as necessarily wise and authoritative.

In proof of the power of anathemas, Chassenée 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 punishment 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 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 mediæval jurist occupy the same standpoint; only the
latter, with a stricter judicial sense, insists that there shall be no
infliction of punishment until the malefactor has been convicted 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
hermeneutist, on the contrary, would justify the curse and admit the
validity of the anathema, although it was only the angry expression of an
unreasonable 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 Chassenée 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
irrigating purposes, to enclose crops with fences, or to lay snares for
birds,” all these things being essential to successful husbandry. But from
the 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, Chassenée mentions several instances of
the effectiveness of anathemas, accepting as convincing testimony the
ecstacies of saints and the extravagant statements of hagiologists without
the slightest expression 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 solicitation of the Duchess of
Burgundy, the ban was removed. In like manner the Bishop of Lausanne freed
Lake Leman from eels, which had become so numerous as seriously to
interfere with boating and bathing; on another occasion in the year 1451
the same ecclesiastic expelled from the waters of this lake an immense
number of enormous 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 approbation of all the learned doctors of the University of
Heidelberg: _omnes studii Heydelbergensis 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 resumed 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 droppings, 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 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 vineyards 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. Pirminius, 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 covered for three days and three nights with
serpents, scorpions and hideous worms. Peculiar vermifugal efficacy was
ascribed to the crosier of St. Magnus, the apostle of Algau, which was
preserved in the cloister of St. Mang at Füssen 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_;[2] 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 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” Chassenée 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 discusses 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 jurisdictionem in temporalibus et possit crimina poenam
sanguinis non existentia_ (_exigentia_ is obviously the correct reading)
_castigare_. Cons. prim. IV. § 5.] For 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 recommending 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. Occasionally
the curate officiated in this capacity. Sometimes 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 comically, but which had to be
decided before the trial could proceed, was whether the accused were to be
regarded as clergy or laity. Chassenée 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_). Probably 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 mediæval 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 scholastic training and scholastic methods of
investigation, 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.

Chassenée also makes a distinction between punitive and preventive
purposes in the prosecution of animals, between inflicting penalties upon
them for crimes committed and taking precautionary measures to keep them
from doing damage. By this means he seeks to evade the objection, that
animals are incapable of committing 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.”

Chassenée endeavours to clinch his argument as usual by quoting biblical
texts and adducing incidents from legendary literature. The province of
zoö-psychology, which would have furnished him with better material for
the elucidation 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-established fact, that birds, beasts and insects, living together in
communities, have certain laws, which are designed to promote the general
welfare 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, recognizes 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 retributive justice. Such a
proceeding, however, is arbitrary and autocratic, and if systematically
applied to human beings would be denounced as intolerable tyranny.
Chassenée insists that under no circumstances is a penalty to be imposed
except by judicial decision--_nam 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 _brutum fulmen_. If he
lays so great stress upon the observance of legal forms, 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 incorrect
accentuation or false intonation in uttering 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; everything must be “well-thought, well-said and well-done,” not
ethically, but ritually, as prescribed in the old Avestan formula: _humata
hûkhta 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 significance, and none of them can be
omitted without 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
irregularity.

Sometimes the obnoxious vermin were generously forewarned. Thus the
grand-vicars of Jean Rohin, Cardinal Bishop of Autun, having been informed
that slugs were devastating several estates in different parts of his
diocese, on the 17th of August, 1487, ordered 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 pronounced sentence on
certain insects (_adversus brucos seu eurucas vel alia non dissimilia
animalia, Gallicè 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. Chassenée, too, endorses this view, and in proof of its
correctness 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 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 (charançon)
known to entomologists as _rychites auratus_, and called by different
names, amblevin, bèche, verpillion, in different provinces of France.

Complaint was first made by the wine-growers of St. Julien in 1545 before
François Bonnivard, doctor of laws. The procurator Pierre Falcon and the
advocate Claude Morel defended the insects, and Pierre Ducol appeared for
the plaintiffs. After the presentation and discussion of the case by both
parties, the official, instead of passing 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_), 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 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 _procès-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 Julliani agentium contra animalia bruta ad formam
muscarum volantia coloris viridis communi voce appellata verpillions seu
amblevins_. The documents, which are still preserved in the archives of
St. Julien, were communicated by M. Victor Dalbane, secretary of the
commune, to M. Léon Ménebréa, who printed them in the appendix to his
volume: _De l’origine de la forme et de l’esprit des jugements rendus au
moyen-âge contre les animaux_. Chambery, 1846. This treatise appeared
originally in the twelfth tome of the _Mémoires de la Société Royale
Académique de Savoie_.

It may be proper to add that Ménebréa’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 without 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 mediæval way of thinking. The penal prosecution of animals, 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 inculcate any such moral lesson as is here
suggested, nor did it produce any such desirable result. So far from
originating in a delicate and sensitive 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, François 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 and
earnest supplications the scourge and inordinate 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 representatives of Christ on earth to prescribe such measures
as may be appropriate to appease the divine wrath. Wherefore we the
afore-mentioned syndics, François 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 distinguished Antoine Filliol was
appointed procurator 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 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 instituting 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 demands that the petition of
the plaintiffs be dismissed, the monitorium revoked and annulled, and all
further proceedings stayed, to which end the gracious office of the judge
is humbly implored (_humiliter implorato benigno officio judicis_).

The case was adjourned to the 12th and finally to the 19th of June, when
Petremand Bertrand, the prosecuting attorney, presented a lengthy
replication, of which the defendants’ 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
holiday, no business could be transacted until the 27th, when the advocate
of the commune, François 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’être_
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 immemorial by our ancestors; we need only refer to the opinions
formerly expressed by the honourable 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 consideration 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 disprove, namely, that the lower animals are subject
solely to natural law, “a law originating in the eternal reason and
resting upon a basis as immutable 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 18th of July, the same parties appear before the official of St.
Jean-de-Maurienne. 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.

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 (_manants et habitants_) were summoned by the ringing of the
church bell to consider the propriety and necessity of providing for the
said animals a place outside of the vineyards of St. Julien, where they
might obtain sufficient sustenance without devouring and devastating the
vines of the said commune. This meeting appears to have been held by the
advice of the plaintiffs’ advocate, François 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 spot 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 survey, not only as to its location and
dimensions, 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 commune.

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 _procès-verbal_ and time for deliberation. The court complied
with this request and adjourned the case till “the first juridical day
after the harvest vacation,” which fell on the 11th 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
postponed 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 complainants (_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 conveyance 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 submit a written report upon the fitness of the same.

The final decision of the case, after such careful deliberation 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 prosecuted 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 visitatione III flor._,” 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
processu Animalium sigillo ordinationum et pro copia que competat in
processu dictorum Animalium omnibus inclusis XVI flor._,” which may be
summed up as sixteen florins for clerical work including seals; finally,
“_item pro sportulis domini 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 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 subsistence 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 Père Rochex:
Gloire de l’Abbaye et Vallée de la Novalaise_), that St. Eldrad commanded
the snakes, which infested the environs of a priory in the valley of
Briançon, 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 introducing sin into the world, may have been regarded as
completely out of the pale and protection of law, and as having no rights
which an ecclesiastical excommunicator or a wonder-working 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. Mediæval
jurists frowned upon summary measures of this sort, just as modern lawyers
condemn 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 excommunicated, 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 outlawry, was practically the same in its effects upon the
individual subjected to it. Excommunication 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 maintained by Gaspard Bailly, advocate and councillor of the
Sovereign Senate of Savoy, in his _Traité 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
corrupted 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 à 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
substitution of Paris green and the chlorate of lime for prayer and
fasting as exterminators of potato-bugs. The modern, like the mediæval
horticulturist 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 Theologiæ_ 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 blessings can be pronounced only upon such things as are
susceptible of receiving evil or good impressions 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 ultimately aimed at and favourably or unfavourably
affected. Thus God cursed the earth, because it is essential to a man’s
subsistence; Jesus cursed 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 righteousness; 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 mankind, whose sins he wishes
to punish.

It is laid down as a legal maxim by mediæval jurisprudents that no animal
devoid of understanding can commit a fault (_nec enim potest animal
injuriam 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 illicitum_).
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 proper to be cursed,” as the Doctor angelicus puts it.
Chassenée 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 inferentially (_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 leviathan, the serpent, the
scorpion, etc., was considered 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
perfections. 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 colophon
records, was “printed at Chambery by Anthony Neyret in the year of grace
one thousand 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 conventional commonplaces,
“several fine moralities,” and dilates on the natural and mystic qualities
of animals, which she divides into two classes, sweet beasts (_bestes
doulces_) and stenchy beasts (_bestes puantes_). Foremost among the sweet
beasts stands that which Milton characterizes as

“Goodliest of all the forest, hart and hind.”

According to the Psalmist, the hart panting after the water-brooks
represents the soul thirsting 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 transubstantiation 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, corresponding 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 described 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, 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 principle to that which is given in
the Avesta, and according to which all animals are regarded as belonging
either to the good creation of Ahuramazda or to the evil creation of
Angrô-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_,
_hûkhta_, _huvarshta_), which are to be fostered in opposition to the evil
thought, the evil word, and the evil deed (_dushmata_, _duzhûkhta_,
_duzhvarshta_), 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 destiny of the universe, depend, to no
inconsiderable extent, upon his choice. His thoughts, words, and deeds do
not cease with the immediate effect which they are intended to produce,
but, like 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 a child 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 detracting 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 idealization 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
subduing 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 Angrô-mainyush.

Plato held a similar theory of creation, regarding it not as the
manifestation of pure benevolence 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 purpose and desire of the
Creator or Cosmourgos, who was therefore obliged to content himself with
what was, under the circumstances, the only possible, but by no means the
best imaginable, 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-off divine event,
To which the whole creation moves,”

consoles them with the vague promise of compensation 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 burned with fire on account of
its utter corruption, 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 conclusions in respect to the
incompleteness of Nature’s handiwork, which it is the function of art and
culture to amend and improve. Everywhere 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 intellectual capacity, the more
efficient he becomes as a co-worker with the good principle. At the same
time, every advance which he makes in civilization 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 Angrômainyush and his satellites to renewed exertions, 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 (_speñtô mainyush_), but also facilitated the propagation
and spread of the plagues of the grasshopper and the Colorado beetle. The
power of destruction insidiously concealed in the minutest insect organism
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 confirms 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 of a contest between warring elements personified 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
individual 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 archfiend,
and therefore embodiments of devils; additional proofs of this doctrine
were derived by mediæval writers from biblical and classical sources. A
favourite example was the metamorphosis 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. Still more numerous and striking instances of this kind were drawn
from pagan mythology, which, being of diabolical origin, would naturally
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 transformations by which Io became a heifer,
Dædalion a sparrow-hawk, Corone a crow, Actæon a stag, Lyncus a lynx, Mæra
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 companions 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 had
the whole country sprinkled with it, whereupon 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 entertaining manner by a Jesuit
priest, Père Bougeant, in a book entitled _Amusement Philosophique 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. Practically he subverts his own metaphysical
system by the distinction which he makes between them, 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 hereafter 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 incompatible 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.

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 theologians endorsed this notion, but
the Church rejected it as heretical. The devils are, therefore, from the
standpoint of Catholic orthodoxy, 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 expression 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, 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. Père Bougeant is furthermore of the
opinion that, when these devils were sent miraculously and therefore
abnormally into the swine, they came into conflict 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
meanwhile 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. 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 regarded by
the Christian Church as devil-worshippers and exorcised before being
baptized, but it is also a logical deduction from the doctrine of original
sin, that a devil takes possession 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
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, 1851), there is a
chapter on the mode of helping those who are afflicted by demons (_Modus
juvandi afflictos 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 diabolical agencies
or attended and greatly aggravated 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 wall, 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 with
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. According 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 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 imbued with the modern spirit than any of his
predecessors, composed and issued, November 19, 1890, a formula of
_Exorcismus in Satanam et Angelos Apostatas_ worthy of a place in any
mediæval 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 practice of the papal see, in this respect, in a brochure
printed in Stuttgart and entitled _Die Verwaltung des Exorcistats nach
Massgabe der römischen 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 expelled from heaven, and appears to have rivalled
Parson Stöcker and Rector Ahlwardt in Anti-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, everlastingly 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 educational institute in Rome
became diabolically possessed 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 10th, 11th, 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 writhe 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 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 expulsion 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 Eichstätt. In the
latter case we have a circumstantial account of the affair by the exorcist
himself, who, in conclusion, uses the following strong language:
“Whosoever denies demoniacal possession 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 Teufelsaustreibung in
Wemding_, the author, Richard Treufels, takes the same view, declaring
that diabolical possession “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 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 diminishing 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 mankind,” and that cranks like Guiteau,
the assassin of President Garfield, are diabolically possessed, the
reverend divine would hardly risk his reputation 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 _Der Teufels- und
Geisterglaube und die psychologische Erklärung des Besessenseins_
(_Allgemeine Zeitschrift für Psychiatrie_, 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 conjurations for the
expulsion of devils as a psychical 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 Jaskowski, in a pamphlet entitled
_Der Trierer Rock und seine Patienten vom Jahre 1891_ (Saarbrücken: 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 manifested 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 instances 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 neuropathologists
to establish the fact that hetero-suggestion emanating from a physician or
priest, or auto-suggestion originating in the person’s own mind, may
often be the most effective remedy for neurotic disorders of every kind.
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 Jaskowski refers to
the woman who was diseased with an issue of blood, and approaching Jesus
said within herself: “If I 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 recognized 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 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,
recognized the curative power of faith under certain circumstances, and
occasionally found it eminently 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, Père 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 conversion of the whole world and the custom of
baptizing infants as soon as they are born would, therefore, produce
serious domiciliary destitution and distress among the evil spirits and
set immense numbers of them hopelessly adrift as vagabonds, and thus
create an extremely undesirable 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. Indeed, so far from being astonished at their
manifestations 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 exhibitions of intelligence, their thoughts and all their mental
operations must be less perfect; and, if these proud spirits are conscious
of their condition, how humiliating it must be for them to see themselves
thus embruted! Whether they are conscious of it or not, this deep
degradation is 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 reconcile 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 protection 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 Ahuramazda against the
malevolent Angrô-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 maltreating 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.

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
disagreeable 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.”

This doctrine, he thinks, is amply illustrated and confirmed by an appeal
to the consentient opinion of mankind or the argument from universal
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 philosophy 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 orthodoxy 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
_débris_ of exploded mythologies adrift on the stream of popular
tradition, cats, dogs, otters, apes, ravens, blackcocks, capercailzies,
rabbits, hedgehogs, wolves, were-wolves, foxes, polecats, 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 Mäuse,
Der Fliegen, Frösche, Wanzen, Läuse.”

“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 zoölatry, 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 Bougeant dismisses with an
indulgent smile and disparaging shrug as implying a gross misconception of
the nature and properties of spirit, which is without extension or
dimension and therefore capable of animating the most diminutive 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 an elephant.” The size of the physical
habitation, 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 supposed 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 Joachimsthal, 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 compromise 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 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.” Furthermore, 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 careful
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
disembodied 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 astonishing 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 profoundly this subject is
investigated, he concludes, 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. distinctly recognized and earnestly sought to
restore to its former prestige. Bougeant’s ingenious 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 persiflage, that one cannot
help surmising an intention to render the whole thing ridiculous in a
witty and underhand way eminently compatible with Jesuitical habits of
mind; but whether serious 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 excommunication and criminal prosecution
against bugs and beasts. He protests with never-tiring and needless
iteration his absolute devotion to the precepts 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 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
Brandenburg, kept some scorpions bottled in olive oil, which were feared
by the common people as terrible devils endowed with magic power
(_fürchterliche 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 sixteenth 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-creatures called terones, which infested the waters of
Sorrento and destroyed the nets of the fishermen. He speaks of them as
“fish or cacodemons” (_pisces seu cacodemones_), and maintains 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 Chassenée 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
infernalis_ 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 discovered in having two horns and
a tail, although the most powerful lenses have not yet revealed any traces
of a cloven foot. An additional indication of its infernal qualities is
the fact that it liquefies the gelatine, with which it comes in contact,
and turns it black, emitting at the same time a pestilential stench.
Doubtless this discovery 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 them
tumultuously over a precipice into the sea. In fact, who can tell what
microbes really are! Père 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 _Traité 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
excommunications), 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 excommunication, which cutteth
the dry wood and the green, sparing neither the quick nor the dead, and
smiting not only rational beings, but turning 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 commands 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 writer on
logic would find ample illustrations of the fallacy known as _post hoc,
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 excommunication. 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 wishes, 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 carnivorous 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 numerous progeny,
which seemed destined to continue the work of destruction indefinitely. A
prosecution 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 disappeared.
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 whitening 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 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, disciplined 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 (_réplique des habitans_), the rejoinder of
the defendant (_réplique du defendeur_), the conclusions of the bishop’s
proctor (_conclusions du procureur episcopal_), and the sentence of the
ecclesiastical judge (_sentence du juge d’église_), which is solemnly
pronounced in Latin. The pleadings on both sides are delivered 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.

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 Cæsar, 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 themselves. 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
constraining them to perpetrate cruel and unlawful deeds; _nec enim
rationem patitur, nec ulla aequitate mitigatur, nec 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, 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 tomorrow.’” The advocate then discourses at
length of the horrors of hunger and its disastrous effects upon the
individual and the community, lugging in what Milton calls a “horse-load
of citations” from Arianus Marcellinus, Ovid and other Latin prosaists and
poets, introduces 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 concerning 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 petitioners do ever pray.”

It is doubtful whether any speaking for Buncombe 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 rhetorical hotchpotch of “matter and
impertinency mixed” as the earnest plea, of which the above is a brief
abstract.

Rather more to the point, but equally overburdened 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
committed 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 procedure implies
that the parties summoned are endowed with reason and volition and are
therefore 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: _Nec 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. tem. litig._ As regards these animals there is no _causa
justa litigandi_; they are not bound in any manner, _non tenentur ex
contractu_, being incompetent to make contracts or to enter into any
compact or covenant whatsoever, _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 à propos_ or in vain: _Deus
enim et Natura nihil operantur frustra_. Now I leave it to you to 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. Furthermore, the very nature of
excommunication is such that it cannot be pronounced against them, since
it is defined as _extra ecclesiam positio, vel è 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 jurisdiction, as the apostle Paul says: “Ye judge them that are
within and not them also that are without.” _Excommunicatio afficit
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 dispendium
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 passages 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 à 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
_Metamorphoses_ of Ovid in confirmation of this fact. In conclusion he
demands the acquittal of the defendants and their exemption from all
further prosecution.

The prosecuting attorney in his replication answers these objections in
regular order, showing, 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 commission
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
whatsoever 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 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
Mirandola, 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 excommunicated 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 serpents,
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 excommunication, 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. 11): “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 (lviii. 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 excommunicated.

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 saying 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 averting the divine wrath and securing the divine
favour.

After the advocates had finished their pleadings, the case was summed up
by the episcopal procurator substantially as follows:

“The arguments offered by the counsel for the defence against the
proceedings instituted by the inhabitants as complainants are worthy of
careful consideration and deserve to be examined soberly and maturely,
because the bolt of excommunication should not be hurled recklessly and at
random (_à la volée_), 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, 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 befitting 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 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 omnipotent, 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 grasshoppers 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 expiration of this period, the animals have refused
to obey this injunction, then they are to be anathematized and accursed,
and the inhabitants 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 particularly offensive character.” (_Vide_ Appendix 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
mediæval 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 children, ought to suffer death, and answers the question
unhesitatingly in the affirmative: “_si animal brutum delinquat, sicut
quandoque faciunt porci qui comedunt pueros, an debeat mori? Dico quod
sic._” Jean Duret, in his elaborate Treatise on Pains and Penalties
(_Traicté des Peines et des Amendes_, p. 250; cf. _Thémis Jurisconsulte_,
VIII. p. 57), takes the same view, declaring that “if beasts not only
wound, but kill and eat any person, as experience has shown to happen
frequently in cases of little children being eaten by pigs, they should
pay the forfeit of their lives and be condemned 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. CXLII.), 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
constant 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 siége
présidial d’Angers_, published at Angers, in 1591, a small quarto
entitled: _Des Procez faicts au Cadaver, aux Cendres, à la Mémoire, aux
Bestes brutes, aux Choses inanimées 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 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 barbarous
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 fourteenth century the peasants
of the Electorate of Mayence brought a complaint against some Spanish
flies, which were accordingly cited to 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 prevent 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 1519, the commune of Stelvio, in Western Tyrol, instituted criminal
proceedings against the moles or field-mice,[3] which damaged the 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
procurator, Hans Grinebner by name, was charged with their defence, “to
the end that they may have nothing to complain of in these proceedings.”
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 larvæ 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 reasonableness 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-conduct 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 destructive 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 recorded 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 mandate enjoined the inger from committing further
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 creature, 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
yourselves 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, however, 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 yourselves or to answer for your conduct through your advocate
before His Grace the Bishop of Lausanne or his vicar and deputy. Thereupon
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 pettifogger’s trick was almost always
resorted to and proved generally successful in procuring an adjournment.
At any rate either this or a precisely similar trial occurred in the
following year. Early in May 1479, the mayor and common council of Berne
sent copies of the monitorium 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 prosecution 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 Thüring Fricker
to prosecute 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 Thüring 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 of all the lands and places of
the bishopric of Lausanne, which are directly or indirectly subject and
appurtenant to us and of which a complete 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 collectively and
severally shall plead, demur, reply, prove by witnesses, hear judgment or
judgments, 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 transacted, performed,
provided, pledged, and ordained 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 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 permits 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 inefficient advocate
and does not appear to have contested the case with the ability and energy
which the interests of his clients required. The sentence 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 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 ourselves 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
detestable 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 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 populi._”
The phrase _das si beswärt werden in die person Johannis Perrodeti irs
beschirmers_ does not imply that the vermin or the devils, of which they
were supposed 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 government
ordered a full report of the proceedings to be made. The ecclesiastical
anathema, however, proved to be _brutum fulmen_; 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 probably creations of the devil. This position was
assumed in order to escape the gross impropriety and glaring incongruity
of having the Church of God curse the creatures which God had made and
pronounced very good, and afterwards 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 immaculate,
in order that we may use whatever 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, and 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 1, 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 document
contains an account of the trial; the pleadings 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 of happiness, provided
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 Maranhão, 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 _argumentum ad
monachum_ by praising the industry of his clients, the white ants, and
declaring them to be in this respect far superior to their prosecutors,
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 eloquence, 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 Floresta, ou Sylva de varios apophthegmas e ditos sentencios
espirituaes e moraes_, etc. Vol. V., Lisboá, 1747.]

About the middle of the sixteenth century the inhabitants of several
villages in Aargau were greatly annoyed by swarms of gadflies and
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 Switzerland, 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 Würmer,” 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 exorcist 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 Görres’
_Historisch-Politische Blätter_ for 1845 (Heft VII. p. 516). A Protestant
gentleman 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 workmen, 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 requested 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 ridicule and disturb him in his
incantations. Thereupon 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 brutes are more easily exorcised or accursed than men,
“for the spirit of man resists more than that of the brute.” Similar
notions were entertained 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 manifestations may appear.

It is natural that a religion of individual initiative and personal
responsibility, like Protestantism, 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 according 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 Greysser,” for
having “put under ban the sparrows, on account of their unceasing and
extremely 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 protection 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 (_durch 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 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. 1, 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 leading to a barn containing much
grain. He concludes 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 resorting 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,
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 impossible 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 Jonson is still more specific:

“Rhime ’em to death, as they do Irish rats,
In drumming tunes.”

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 Fête 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, mulots!
Ou je vais vous bruler les crocs!
Quittez, quittez ces blés!
Allez, vous trouverez
Dans la cave du curé
Plus à boire qu’à manger.”

The form of imprecation varies in different provinces, but usually
includes some threat of breaking the bones or burning the beards of the
refractory rodents, in case they refuse to quit the close, as in the
following summons:

“Taupes et mulots,
Sors de mon clos,
Ou je te casse les os;
Barbassione! Si tu viens dans non clos,
Je te brûle 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 ravages of these creatures; and when the town of Le Mans was
rebuilt after its destruction by fire in 1145, 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 Évêques du Mans_, 1648, p.
441. Cf. Desnoyers: _Recherches_, etc., p. 7.)

The use of the above-mentioned means of conjuration is unquestionably of
very ancient date. Thus in a treatise on agriculture entitled τὰ γεωπονικά
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 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 husbandman to put his trust in good rat-bane. Bassos derived the
materials for his popular encyclopædia 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
disobedient 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-sustaining 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 case of disobedience; the
milder epistolary form of the present day is more advisory and persuasive
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 calling out: “In yonder
village is church-ale (_Kirmes_)”; thus implying that they will find
better entertainment at this festival. (Witzschel: _Sagen, Sitten und
Gebräuche aus Thüringen_. 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 (_Wetterkreuze_) for the purpose of averting
thunder-storms and hailstones from themselves 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 entreating St. Florian to
preserve their habitation from flames and to set fire to others, as though
the 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 Malepartus, and which might be translated:

“Saint Florian, thou martyr blessed,
Protect this house and burn the rest.”

Not only were insects, reptiles and small mammals, such as rats and mice,
legally prosecuted and formally excommunicated, but judicial penalties,
including capital punishment, were also inflicted upon larger quadrupeds.
In the Report and Researches on this subject, published 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 proceedings 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 execution 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, consisting chiefly of caterpillars,
flies, locusts, leeches, 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 fourteenth, 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 1519, at Als in Jutland in 1711,
at Bouranton in 1733, at Lyö 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 miracle had
been wrought. Pious Mohammedans 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 maliciously 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. (_Amira_, 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 peculiarly 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 registers 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.

Beasts were often condemned to be burned alive; and strangely enough, it
was in the latter half of the seventeenth century, an age of comparative
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 “Phélippart, 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 (_étoit allé de vie a trépas_).” In 1557, on the 6th of
December, a pig in the Commune of Saint-Quentin was condemned to be
“buried all alive” (_enfoui tout vif_), “for having devoured a little
child in l’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 Beutelsbach in Würtemberg and carried
off many head of cattle. By the advice of a French veterinary doctor, who
was quartered there with 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 epizoötic plague; the noteworthy fact is
that the superstitious 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 Bête._ Paris, 1872, p.
344), that “the cries which they uttered under torture were received as
confessions of guilt,” is absurd. No such notion was ever entertained by
their tormentor. “The question,” 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 confessed his
guilt under torture. The use of the rack might be, therefore, a merciful
means of escaping the gallows. Appeals were sometimes 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
Geneviève. 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 retributive
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, metaphorically at least, with
clean hands, thus indicating 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” (_maître des hautes œuvres_), as he
was officially styled. (_Vide_ Appendix G.)

We may add that the west wall of the south branch of the transept in the
Church of the Holy Trinity (_Sainte-Trinité_) 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 l’Abbé 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 Abbé 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. Unfortunately, too,
as the same writer informs us, _la châsse de la bannière_ (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 incarceration
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 procurator 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 confirmation and approbation thereof caused it to be sealed
with the seal of the Chatellany of Meullant, 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 treatment. 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 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 following July,” when it was hanged “for
the crime of having murdered and killed a little child” (_pource que
icellui porc avoit muldry et 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 gallows
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-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
Châlons-sur-Marne in Champagne, to pay homage to King Henry IV. In his own
words: _dum ibam ad civitatem Cathalani in Campania ad Regem tunc ibi
existentem, vidi quemdam porcum, in furcis suspensum, qui dicebatur
occidisse quemdam puerum_. (Quaestio 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 swinekeeper, 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 condemned
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, Friar Humbert de Poutiers, not willing to
endure the loss of his swine, sent an humble petition to Philip the Bold,
then Duke of Burgundy, 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 remitted and the swine released. (_Vide_
Appendix K.)

A peculiar custom is referred to in the _procès verbal_ of the prosecution
of a porker for infanticide, dated May 20, 1572. The murder was committed
within the jurisdiction of the monastery 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 criminals, 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, without 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 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 calcitrosus_), the executioner cut off
its feet before consigning 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
mediæval as well as later writers on criminal jurisprudence repeatedly
complain of this evil and call for reform. Thus Damhouder, in his _Rerum
Criminalium Praxis_ (_cap. de carnifice_, p. 234), urges magistrates to be
more careful in selecting persons for this important office, and not to
choose evil-doers, “assiduous gamblers, public whoremongers, malicious
back-biters, impious blasphemers, assassins, 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 Franconia, a sow,
which had bitten off the ear and torn the hand of a carpenter’s child,
was given into custody, whereupon the hangman, without legal authority,
took it to the gallows-green (Schindrasen) 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
execution 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 documents) 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 ambo
comburuntur_), says Guillielmus Benedictinus, 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, 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 (_assommée_) by the executioner 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 confiscated and the sum of one hundred
and fifty livres be adjudged to the plaintiffs, out of which the costs of
the trial were 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
_Magnalia Christi Americana_ (Book VI, (III), London, 1702) Cotton Mather
records that “on June 6, 1662, at New Haven, there was a most
unparalleled wretch, one Potter by name, about sixty years of age,
executed for damnable Bestialities.” 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
confounding 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
afterwards 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 Wünschelburg 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 that in
burning the bodies the man’s should lie underneath that of the beast. In
the following year, fourteen days before Christmas, a journeyman 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, confiscated 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 participated 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 inhabitants 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 therefore “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. 19, 1750,
and signed by “Pintuel Prieur Curé” 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”
(“_so ein_ Mensch mit einem Viehe, Mann mit Mann, Weib mit Weib,
Unkeuschheit treibet, die haben auch das Leben verwircket, und man soll
sie der gemeinen Gewohnheit nach mit dem Feuer vom Leben zum Tode
richten.” Art. 116.), but stipulated 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 Criminalium_ (Wittenberg, 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, 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 Döpleri,
_Theatrum Poenarum Suppliciorum et Executionum Criminalium, oder
Schau-Platz derer Leibes- und Lebens-Straffen_, etc. Sondershausen, 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 persecutions and prosecutions for
witchcraft in mediæval and modern times derive their authority and
justification from the succinct and peremptory command: “Thou shalt not
suffer a witch to live.” In the older criminal codes two kinds or degrees
of sodomy are mentioned, _gravius_ and _gravissimum_; the former being
condemned in the thirteenth verse and the latter in the fifteenth and
sixteenth verses of Leviticus. Döpler tells some strange stories of the
results of the _peccatum gravissimum_; and the fact that a sober writer on
jurisprudence could believe and seriously 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 question was gravely discussed by
jurists, whether cohabitation of a Christian with a Jewess or _vice versa_
constitutes sodomy. Damhouder (_Prax. Rer. Crim._ c., 96, n. 48) is of the
opinion that it does, and Nicolaus Boër (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 paramour, “since
coition with a Jewess is precisely the same as if a man should copulate
with a dog” (Döpl., _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 10th 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 esproné_).” 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 forthcoming 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 declared,
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 _procès 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 condemned, on the
18th of April, 1499, by the bailiff of the Abbey of Josaphat near
Chartres, 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 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 blameless 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 Abyssinia, 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 responsible for its crime, nevertheless he practically incurs 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 require.”
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 disfigured 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 life (_de ce siècle trépassa_).” 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
Clermont-lez-Montcornet, appertaining in all matters of high, mean and
base justice to the monks of the order of Premonstrants,” and the
prosecution was conducted by “Jehan Levoisier, licenciate 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 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 examples of this kind.
Infanticidal swine were hanged in 1419 at Labergement-le-Duc, in 1420 at
Brochon, in 1435 at Trochères, 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 evidently regarded as a very
solemn affair. The records of mediæval courts, the chronicles of mediæval
cloisters, and the archives of mediæval 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 invective 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.”

That such cases usually came under the jurisdiction of monasteries and
so-called spiritualities and were tried by their peculiarly organized
tribunals, will not seem strange, when we remember 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 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 promulgated four years later, on Nov. 29, 1668,
expelling the pigs from the city and calling attention to the fact that
they corrupted the atmosphere 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 cleanliness and to appreciate its hygienic value as well as
its æsthetic 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 mediæval 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).

In the latter half of the sixteenth century the tribunals began to take
preventive measures against the public nuisance by holding the inhabitants
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 condemned 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
arbitrary 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 infanticide, other quadrupeds were frequently called to answer
for similar crimes. Thus, in 1314, a bull belonging to a farmer in the
village of Moisy, escaped into the highway, where it attacked 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 proceedings 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 payment to be made to the carpenter who had erected the
scaffold on which an ox had been executed “for its demerits.” Again on the
16th of May, 1499, the judicial authorities of the Cistercian Abbey of
Beaupré 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 Boullet. (_Vide_ Appendix Q.) In 1389,
the Carthusians of Dijon caused a horse to be condemned 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 Bâle sentenced a cock to be burned at the
stake “for the heinous and unnatural crime of laying an egg.” The _auto da
fé_ 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 _Kurze Basler 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 Prättigau as
late as 1730, although in many cases the execution of the gallinaceous
malefactor was more summary and less ceremonious than at Bâle.

The _oeuf coquatri_ was supposed to be the product 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 basilisk, which would hide in the roof of the house and with its
baneful breath and “death-darting eye” destroy all the inmates. Many
naturalists believed this fable as late as the eighteenth century, and in
1710 the French savant Lapeyronie deemed this absurd notion worthy of
serious refutation, and read a paper, entitled “Observation sur les petits
oeufs de poule sans jaune, que l’on appelle vulgairement oeufs de Coq,”
before the Academy of Sciences in order to prove that cocks never lay and
that the small and yolkless eggs attributed to them owe their peculiar
shape and condition to a disease of the hen resulting in a hydropic
malformation of the oviduct. 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
resembling “a small serpent coiled.” He now began to suspect that the cock
might be an hermaphrodite, 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 a popular delusion, the eggs in
question continued to be produced, until the farmer by carefully 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
enroué_), 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
(_Mémoires de l’Académie de Sciences._ Paris, 1710, pp. 553-60.)

A Greek physiologus of the twelfth century, written in verse, calls the
animal hatched from the egg of an old cock επτεινάρια, 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 considerations and
the culprit confiscated, but not capitally 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 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 appropriated 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 l’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 particularly 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 perpetual smell of burning sulphur in his subterranean abode
may render him proof against any 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 apparens_), 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 himself 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 prosecutions of animals were still quite frequent and the
penalties inflicted extremely cruel, that Racine caricatured them in Les
Plaideurs, where 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 as modern authorities. The accused is
condemned 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 consideration of the expense to the state of
keeping the offspring of the culprit in a foundling hospital, in case they
should be deprived of paternal support. To the contemporaries of Racine
the representation of a scene like this had a significance, 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 immoral as well as cowardly not
to put into practice. 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 foot, burning for
burning, wound for wound, stripe for stripe.” An old Anglo-Saxon law made
this retaliatory principle of _membrum 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 concupivit; amittat et testiculos,
qui calorem stupri induxerunt.” Cf. Bracton, 147_b_; Reeves, I. 481.] This
was believed to be God’s method of punishment, smiting with disease or
miraculously 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: _impurus et saltator sacerdos fulmine castratus_. The
same sort of retributive justice was recognized 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 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 punishment, 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 whatever spot was set apart for interring
the dead bodies of human criminals. At Ghent, however, 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 Flemings 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, 1621, 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 Türler’s _Strafrechtliche Gutachten des geistlichen Konvents
der Stadt Bern_ (_Zeitschrift für 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 responsibility did
not suffice to relieve the accused of legal responsibility and to free him
from punishment, 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 governments, 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 bove 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 commanded 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 between
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 discussion 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 accountable 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 supposed to have caused the mishap, and
the blood of the slain was not thought to be thoroughly avenged until the
offending object had been 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
Drakôn 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 regarded as
justifiable homicide in self-defence, no such ground of exculpation seems
to have been admitted. Thus the statue erected by the Athenians in honour
of the famous athlete, Nikôn 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 ἄψῦχων
δίκαι (prosecutions of lifeless things) and were conducted before the
Athenian law-court known as the Prytaneion; they are alluded to by
Æschines, Pausanias, Demosthenes, and other writers, and briefly described
in the _Onomasticon_ of Julius Pollux and the _Lexicon Decem Oratorum
Graecorum_ of Valerius Harpokration.

Strictly speaking, the term ἄψῦχων should be applied only to an inanimate
object and not to the brute, which was more correctly called ἄφωνον
(dumb); but this distinction was not always observed either in common
parlance or in legal phraseology. The law on this point as formulated 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 combat
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 (ἀγρονόμοι), as many as may be commissioned by the said kinsmen,
shall adjudicate upon the case and send the offender beyond the boundaries
of the country (ἐξορίζειν, 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 (κεραυνός) or other missile (βέλος) 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
(τὸ ὄφλον) 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 murderer be unknown, then proclamation shall be made by
a herald on the market-place forbidding the murderer to enter any
sanctuary or the land of the slain, and declaring that, if discovered, 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. Æschylus, _Cho._, 395, where this law (νόμος) 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 incurred by such an
act, the μίασμα 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 spectators and “amid the loud execrations of
the masses,” who seem in their excitement to have “lost their heads” as
well as the hapless deities.

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 conveyed with
other exiles to Tobolsk. After a long period of solitary confinement it
was partially 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 _Metamorphosis Telae Judiciariae_, of
which the eighth edition was published at Nuremberg in 1712, 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 Narrenkötterlein, a sort of pillory or iron cage
standing on the market-place, in which blasphemers, evil-livers, rowdies
and other peace-breakers were commonly confined. [The Narrenkötterlein,
Narrenköderl or Kotter formerly on the chief public squares in Vienna are
described as “Menschenkäfige mit Gittern von Eisen und Holz, bestimmt das
darin versperrte Individuum dem Spotte des Pöbels preiszugeben (zu
narren).” Schläger: _Wiener Skizzen 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
formally tried and convicted as murderers by a legal tribunal, and that no
account should have been taken of their rabies as an extenuating
circumstance 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 permitted 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,
corresponding 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 Ahuramazda, and especially with the
many measures taken by the Indo-Aryans as a pastoral people for the
protection of the dog. Indeed, a paragraph 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 preservation of the
Capitol from the night-attack of the Gauls, not only by paying honour to
the descendants 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 demerit 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, that 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 of
a wholly innocent person. They are all applications 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 inviolable
code of many semi-civilized communities, is based upon the same conception
of consanguineous solidarity for the perpetration and avenging of crime.

According to an old Anglo-Saxon law, abolished by King Canute, in case
stolen property 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 (_peâh
hit nafre metes ne âbîte_), were punished as partakers of his guilt. The
_Schwabenspiegel_, the oldest digest of South German law, treated as
accessaries all the domestic animals found in a house, in which a crime of
violence had been committed, and punished them with death. [“Man soll
allez daz tötden daz in den huze ist gevonden: 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 for his children.” Roman law
under the empire punished treason with death and then added: “As to the
sons of traitors, they ought to suffer the same penalty as their parents,
since it is highly probable that they will sometime be guilty of the same
crime themselves; nevertheless, 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 testament 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
counterpart 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 applicable 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 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 afterwards 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, however, such holocausts of justice
were suppressed among the Jews, and a law enacted that henceforth “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 expresses it figuratively, the
children’s teeth were to be no longer set on edge by the sour grapes
which their fathers had eaten. Yet the persistency 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 slaying 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 Blücher 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 primitive 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 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 corresponds 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 endeavour 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 mediæval penal
legislation, doomed incendiaries to be burned alive; and an old law, cited
by Döpler (_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 offence which he had committed. Ivan Basilovitch, a
Muscovite prince, ordered that an ambassador, 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 highway 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
encroachments upon it, so strong was the lingering prejudice 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 determining degrees of
responsibility are uniformly ignored, and the innocent are doomed to
suffer 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
therefore be consigned to the offended deity. The same is true of the
plowman, who did not escape immolation even when the _motio 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 consideration 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 aboriginal
propensities, and of nicely analyzing actions and studying mental
conditions in order to ascertain degrees of moral responsibility,
presupposes a high degree of mental development and refinement and great
acuteness of psychological perception, and is, in fact, only a recent
acquisition of a small minority of the human race. The vast bulk of
mankind will have to pass through a long process of intellectual
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 progress towards better judicatory methods, but a clumsy
survival of primitive justice as administered 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
explosion 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’être_. In Italy, especially in Naples and Sicily, a thief may be
sometimes condemned, but a murderer is almost invariably acquitted by the
jury, whose decision expresses the corrupted moral sense of a people
accustomed 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 institution 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
momentum 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 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,
mention 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, 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
homœpathically against theft. The persistency of this superstition 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, and
convicted of having exhumed the body of a newly buried child in the
churchyard of Moosbach and taken out one of its eyes, which he supposed
would render him invisible to mortal sight like the famous _tarnkappe_ 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 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 recognized deodand in the strictly
etymological sense of the term, but only escheat, in other words, the
confiscated objects were not necessarily applied to pious purposes--_pro
anima regis et omnium fidelium defunctorum_--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 sovereigns introduced it from France, but so
modified the practical application of the principle as to award to the
injured party the greater portion, in Lüneburg, for example, two-thirds of
the value of the confiscated animal or object. (_Vide_ Kraut’s _Stadtrecht
von Lüneburg_, No. XCVII. Cited by Von Amira, p. 594.)

Blackstone’s theories of the origin of deodands are exceedingly vague and
unsatisfactory. Evidently the learned 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 negligence, 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. 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 punishment for it by being robbed of their rightful
inheritance. Yet this was by no means the intention of the lawmakers, who
simply wished to prescribe an adequate atonement for a grievous 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 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 Christian
Church of to-day refuses to bury in consecrated 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 themselves or to
the state. On the other hand, when 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 detrimental 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 exception 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.

CHAPTER II

MEDIÆVAL 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, lawgivers and courts of justice still continued to
treat brutes as men responsible for their misdeeds, and to punish them
capitally as malefactors, the tendency now-a-days is to regard men as
brutes, acting automatically or under an insane and irresistible impulse
to evil, and to plead this innate and constitutional proclivity, in
prosecution 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 concerning the nature of noxious
animals.

Mediæval jurists and judges did not stop to solve intricate problems of
psycho-pathology nor 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 culpability, or to detect
delicate differences in the psychical texture and spiritual qualities of
deeds. They put implicit faith in Jack Cade’s prescription 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 represented by graceful females feeding the emblematic
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, supposed to be the incarnation of a deceased burgomaster of
Ansbach, did much harm in the neighbourhood 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 burgomaster’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 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 superstition,
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 executioners
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 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 fé_ was accepted as conclusive proof that her neighbours had
neglected to perform their whole religious duty in not having burned her
when she was alive, and were thus punished for their remissness.

Döpler cites also the case of Stephen Hübner 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 1573, the parliament of Dôle published a decree permitting the
inhabitants of the Franche Comté to pursue and kill a were-wolf or
loup-garou, which infested that province; “notwithstanding 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 à Becket to appear before the Star
Chamber to answer for his crimes and then had him condemned as a traitor,
and his bones, that had been nearly four centuries in the tomb and
worshipped 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 unlawfully and sacrilegiously usurped
the papal dignity. A writ of summons was issued in due form and the corpse
of the octogenarian pope, which had lain 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 pestilential 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 Formosus taken out of the water and restored to the
tomb. The Athenian Prytaneum, as we have already seen, was guilty of the
childishness 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.

From the standpoint of ancient and mediæval jurisprudents the overt act
alone was assumed to constitute the crime; the mental condition of the
criminal was never or at 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 punishableness of an
offence is now generally recognized as depending solely upon the sanity
and rationality 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 element is
wanting, there is no culpability, 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; mediæval criminal
law ignored the origin altogether, and regarded exclusively the effects,
which it dealt with on the homœopenal principle of _similia similibus
puniantur_, for the most part blindly and brutally applied.

Mancini, Lombroso, Garofalo, Albrecht, Benedikt, Büchner, Moleschott,
Despine, Fouillée, Letourneau, Maudsley, Bruce Thompson, Nicholson,
Minzloff, Notovich and other European criminal lawyers, physiologists and
anthropologists have devoted themselves with peculiar 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
procedure no longer stops with testimony establishing the bald facts in
the case, but admits also the evidence of the expert alienist in order to
ascertain 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
accountability, may be perfectly clear, manifesting itself in all its
fulness and power, or it may be partially obscured. So, too, the will,
whose self-determination is the second condition of accountability, 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, abnormities 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 irresistible. For this reason, it involves no
contradiction 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 manifest themselves with equal obviousness and intensity 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
determined 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
exculpation. Thus one might go on analyzing and refining away human
responsibility, and reducing all 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 consigned to the sympathetic care of
the psychiater.

Italian anthropologists and jurisprudents have been foremost and gone
farthest, both theoretically and practically, in this reaction from
mediæval 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
sensibility, 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
stimulated the ingenuity of lawyers and legislators to discover mitigating
moments and extenuating circumstances and other means of loosening 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 recurrences, 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 laggards 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 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 1851. It
must be 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 (Junkerthum) in
Germany, Prussia has stubbornly resisted 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, however, 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 consideration or to allow it to exert the slightest influence
upon their judgment in the infliction of judicial punishment. Moral
insanity, as usually defined, involves a disturbance of the moral
perceptions and a derangement of the emotional nature, without impairing
the distinctively intellectual 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 destitute of the moral sense and of
all the finer feelings of humanity, performing the most atrocious 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 circumstance, 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.

Mediæval penal justice sought to inflict the greatest possible amount of
suffering on the offender and showed a diabolical fertility of invention
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, interlarded 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 instrument 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
progressive 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 temptation to commit, were punished with extraordinary 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 Ensisheim in Alsatia under the date
of February 3, 1570. In 1401, 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 Borromeo, who was pre-eminent
among his contemporaries 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 entertained heretical
notions concerning the sinfulness of eating meat on Friday, and expressed
doubts touching the worship of images, indulgences, 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 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 compared 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 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 incongruity of attempting to rear a democratic commonwealth on
theocratic foundations and made the fatal mistake of planning their
structure 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 appreciate the immense difference between the mediæval
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 commission of crime is the necessary result of
physiological idiosyncrasies, hereditary predispositions, brachycephalous,
dolichocephalous or microcephalous peculiarities, anomalies of cerebral
convolution, or other anatomical asymmetries, over which the individual
has no control and by which his destiny is determined, then he is
certainly not morally responsible for his conduct. But is he on this
account to be exempt from punishment? The vast majority of criminalists
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 themselves 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 organized 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. Here,
too, the welfare of society is the determinative 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 maintains that
“there is no more demerit in being perverse than in being cross-eyed or
hump-backed.” In a recent lecture on criminal jurisprudence and biology
Professor Benedikt cites the case of a Moravian 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, defective cerebral development and other abnormities
undoubtedly occur in criminals, whose acts may be traced, in some degree,
to these physical imperfections 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 æsthetic 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 embellishing 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 disfiguring
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 comparatively young,
these phenomena are by no means remarkable. He has also found that the
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
affirmative answer, replied, “Then I’m agin’ it.” Criminal anthropologists
have been especially earnest in their endeavours to define this pernicious
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 insufficient data. Taine’s definition of man as “an animal
of a higher species, that produces poems and systems of philosophy, as
silkworms 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, temperament, climate,
food, organism, environment and other pre-natal and post-natal influences
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 philosophical 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 Palæolithic 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 anthropologists have been
untiring in their efforts to discover physical and moral characteristics
common to both: long arms like chimpanzees, four circumvolutions 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
assassins are brachycephalous and thieves dolichocephalous. 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 thievish,
whereas a club-fisted fellow is pretty sure to have a pugnacious
disposition, and to be a born rough. Nevertheless social surroundings,
educational influences and other outward circumstances 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 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 intellectual
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 physiologist, says Dr. Manouvrier, who should come
across such a skull in a museum, would unhesitatingly 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 supplementary 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 advocate of this doctrine of the causal
connection 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 characteristics which he
deemed so essential to man as a moral and intellectual being. The late
German professor Bischoff 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 incompetent to master the various branches of study taught in
our universities. A post-mortem examination proved his own brain to be
considerably 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 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
unknowable quantities. The impulse given by each must be exactly estimated
in order to predetermine the joint effect. No factor which contributes to
its formation must be overlooked, and the acceptance of any one of them,
however important 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 Professor 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 jurisprudence; and this
evil is most clearly perceptible 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 different
manner from what it was when men waged war with bows and arrows; modern
criminality must be fought, as it were, with repeating rifles.” In other
words, we can never suppress crime by meeting it with bludgeons and
boomerangs 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 conception of punishment as mere retaliation or
retribution 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 positive, 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 circumstances,
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, whose wrong-doing arises from a
diseased, ill-balanced or undeveloped mental or physical organization, and
is therefore an inborn and perhaps 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 survival 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 discomfort and detriment of
civilized society and the permanent deterioration of the race. To sentence
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 commit. 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 determined not solely by the enormity of the
crime, but chiefly by the character of the criminal. 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 culpable 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 mediæval courts of justice for prosecuting 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 caterpillars 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 anthropologists would repress and eliminate a vicious person
without regard to his mental soundness or moral responsibility; to use
Garofalo’s metaphor 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 obstinate bias of this sort even in a child.
In accordance with this idea his disciple, Le Bon, proposes to “deport to
distant countries all professional criminals or persistent relapsers into
vice (_récidivistes_) 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 voluntary transgression of the moral law,
but as the result of a transmitted taint and organic deficiency, 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 institutions, 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 acts originating in this manner are purely automatic, 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 hypnotized 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 punishment, 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 irresistible by long indulgence and
assiduous cultivation, so that the man is overmastered by it and cannot
help yielding to it under strong temptation; 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, ought not wholly to escape the consequences of his
folly. That the hypnotizer should be made fully responsible for the
realization of his suggestions, 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 hypnotizers as mediæval
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
mediæval and modern miracle-mongering. 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 produce tumors, ulcers, muscular atrophy, paralysis of
the limbs and like affections apparently organic, but really nervous. In
such cases any kind of faith-cure, in which the patient has confidence,
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 recommended by priests
and occasionally even prescribed by physicians, who are far too
enlightened to regard such healings as miraculous or supernatural. The
success of scientific research in disclosing the physical basis of
intellectual life is gradually undermining the foundations 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 insanity. However easy it may be to recognize the grosser
varieties of mental disorder, it is often impossible even for an expert to
detect it 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 molecule 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 pursuit
of a foolish whim, resulting in useful inventions or dissipating itself in
chimerical projects; 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 “mistakes 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 mythopœic 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 mythologize. In the
absence of better material, it seizes upon the most prosaic and practical
improvements 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 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 influences. 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 uniformly consigned great inventors to the infernal
regions, his Satanic Majesty could have never had any lack of ingenious
wits among his subjects capable of advising him in such matters.

An important consideration, which did not disturb the minds of mediæval
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 voluntary act, is really dependent upon a great
variety 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 aggravating 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 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
perception of this fact that disturbs the conscience, puzzles the will,
and palsies the arm of the modern law-giver and executor of justice.

Mediæval 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, psychical 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 unphilosophical view of human action and
responsibility; the danger now-a-days lies in the opposite extreme, in the
tendency to pity the vicious individual as the passive product and
commiserable victim of unfortunate conditions, and while engaged in the
laudable attempt to improve these conditions by working out broad and
benevolent plans of permanent relief and reformation for the future
amelioration of society, to relax penalties 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 discharge 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 concrete 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. Predestination, 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 of a deity “willing to show his wrath and to
make his power known,” no man can by any effort 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. Evolution, 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. Salvation
through the “election of grace” is by no means identical with salvation
through the “survival 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”; evolutionary science, on
the contrary, recognizes and appreciates redeemable qualities by
selecting, 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 meeting an angry deity, but with hope and cheerfulness,
knowing that the beneficent forces of nature 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 perfection 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 consciousness that he is perfecting
himself.” This utterance of the Athenian sage expresses the fundamental
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 corresponding in importance to that which the
unpardonable 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
depriving 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 difficult to
determine the point at which moral and 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 zoöpsychologist 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
parental affection. This earliest and most primitive of altruistic
emotions is exceedingly strong in the lower animals, especially in those
whose offspring are comparatively helpless in infancy, as 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 “showing off” play no small
part in the wrongdoings of apes and apish men and women. Other incentives
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 mediæval courts 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. Zoöpsychology is the key to
anthropopsychology 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 rationally and effectively in bestial man.

Another point discussed by Plato and still seriously debated by writers on
criminal jurisprudence is whether punishment is to be inflicted _quia
peccatum est_ or _ne peccetur_; in other words, whether the object of it
should be retributive 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 also for the purpose of preventing a recurrence of it, and is
therefore both retributory and reformatory. Punishment is defined by Laas
as “ethicized and nationalized revenge, exercised by the state or body
politic, which is alone impartial enough to pronounce just judgments and
powerful enough to execute them.” Civilization takes vengeance out of the
hands of the injured individual and delegates it to the community or
commonwealth, which has been outraged 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 aggregate 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 conscientious persons, strongly affected by these
speculations 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 magisterial sternness and

“the native hue of resolution
Is sicklied o’er with the pale cast of thought.”

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 determines our moral judgments and judicial
decisions. Yet the chief elements, which enter into a person’s character
and contribute to its formation, lie beyond his control or even his
consciousness, and in many cases have done their work before his birth.
Responsibility for character is equivalent to responsibility for all the
inherited 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 recognizable 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 and depraved, although the
police in the exercise of its protective and preventive functions and as a
means of providing for the general security, may feel in duty bound to
keep a watchful 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 célèbres_ 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 perplexing features of the case in _The Nation_ for January
7, 1869, p. 11.] Dumas in his novel _Le Comte de Monte Christo_, describes
the character and career of a young, refined and beautiful 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 criminality
without ascribing it to some apparently adequate motive. Madame de
Villefort administered deadly potions to her relatives under the impulse
of a morbidly intense maternal love, which centred all her moral and
intellectual 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 watched 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. Monomaniacs 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 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 inadequacy of each, he was driven by sheer stress of
inexplicability to seek a motive in “_l’espèce de volupté qu’elle
éprouverait à commettre un 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 compassion in
the hardest human heart, seems more like the working of some baneful and
irrepressible 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’ deliberation,
rendered a verdict of “Guilty, with extenuating circumstances,” as the
result of which the accused was sentenced to twenty years’ hard labour.
As a matter of fact, there were no circumstances 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 workhouse. If
it be true, as asserted by Mynheer Heymanns, one of the latest expounders
of Schopenhauer’s ethics, that “a man is responsible 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 appalling 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
unprotected against all maleficence not traceable to such an origin.

There can be hardly any doubt that the Swiss nurse was a toxicomaniac and
that she had become infatuated with poisons, partly by watching 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,
experiment with poisons on living persons? Why should she not follow such
an illustrious example, 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 atropine from atropa belladonna or deadly
nightshade. 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 illustrious 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 purpose the physiological 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 sympathy of the woman. She observed the writhings 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 discover.” Marie Jeanneret was a fanatic of this kind. She, too,
was a woman possessed with ideas as witches were once supposed to be
possessed with devils. Had she prudently confined her experiments to the
torture of helpless animals, she might perhaps have taken rank in the
scientific world with Brachet, Magendie and other celebrated vivisectors,
and been admitted 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 monomania, 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 irresponsibly 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 “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 propensity 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 preventing 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.

It is no easy task now-a-days for penal legislation 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.
_Salus 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 transgressor, 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 theological conception of delinquencies
into the province of civil government has always been the vice of
hierarchies and has never failed to work immense mischief by leading
inevitably to impertinent intermeddling with matters of conscience and
private opinion, putting a premium on pretended repentance and like
hypocrisies, and converting the witness-box into a confessional 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 hanging of an admittedly insane person,
who has committed murder, prevents other insane persons 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 question. It is a well-established fact, that the 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 emboldened 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 persecuted 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 confession
that he would not have dared to commit the act unless he had believed that
as a certificated lunatic under confinement he ran no risk of being
hanged, illustrates the point in question. There can be no doubt, for
example, that the execution of Guiteau for the assassination 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 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 necessary to remark upon the
absurdity of Lombroso’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 Hungary, 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 pœnæ metu, licet urgeat fames, desinunt_. He records also that in
riding from Cologne towards Düren, 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 illa vasta silva, vidimus duos caligatos lupos non
secus quam duos latrones, furcæ suspensos; _quo similis pœnæ 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 bruta sæpe ratione utantur melius
homine_, was first published by Gabriel Naudé 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 peculiarly strong and morbidly contagious. The
celebrated psychiater, Baron Von Feuchtersleben, 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 _Hygiène de l’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 exciting 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 _Les Deux Frères_, by Louis
Letang, appeared in the Paris _Petit Journal_, the 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 Aurélien
and Daniel. Their enmity and jealousy finally become 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 _attaché_ 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_, charging him with high treason, and seeking to
excite public opinion against him. This article concludes with the false
statement that a search in Dormelles’ department had led to the discovery
of important documents referring to the fabrication 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.
Lieutenant-Colonel Alleward is arrested and commits 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
Elysées, 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 explanation of this
remarkable concurrence of events, as they are narrated in the fiction and
afterwards occurred in fact, is that the method of conducting 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
falsehoods 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 mistakes and commit the same
crime without incurring 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 nervous
diseases, and more than two centuries ago the illustrious jurisconsult,
Samuel Pufendorf, 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, especially 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 well worth trying.
Meanwhile, let the psychiater continue his researches, and after we have
passed through the present confused and perilous period of transition from
gross and brutal mediæval 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 foundations
that shall be both philosophically sound and practically safe.

APPENDIX

CONTAINING ORIGINAL DOCUMENTS

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 causidicum
in curiis civitatis Maurianne presentem et acceptantem 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 relevationis ratihabitionis
et aliis opportunis suo juramento 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 Julliani cum
egregio Petremando Bertrandi ejus procuratore producens 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 implorato auxilio_ signatum _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 procuratore egregium
Anthonium Fillioli licet absentem cui injungimus ut salario moderato
attenta oblatione conquerentium qui se offerunt satisfacere teneatur et
debeat ipsa 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 comparuerunt judicialiter coram
nobis Vicario generali Maurianne prefato honestus Franciscus Ameneti
conscindicus jurat venisse cum egregio Petremando Bertrandi ejus
procuratore producit et reproducit supplicationem nobis porrectam
retroacta et agitata contra eadem Animalia maxime designata in memoriali
coram nobis tento decima sexta maii literas eodem die curato Sancti
Julliani directas unacum attestatione signata _Romaneti_ qua constat
clerum et incolas dicti loci proposse satisfecisse contentis in eisdem
literis ad formam ordinis in ipsis designato petit sibi juxta et in actis
antea requisita provideri et alia uberius juxta cause merita et inthimari
egregio Fillioli procuratori ex adverso. Hinc egregius Fillioli procurator
dictorum Animalium brutorum petit communicationem omnium et singularum
productionum ex adverso cum termino deliberandi defendendi et participandi
cum domino advocato 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 quo supra quid voluerit deliberare et defendere deliberandum et
defendendum. Datum in civitate Maurianne die et anno premissis.

R. D. GENERALI VICARIO ET OFFICIALI EPISCOPATUS MAURIANÆ

Divino primitus implorato auxilio humiliter exponunt syndici totius
communitatis seu parrochie Sancti Julliani cæterique homines ac sua
interesse putantes et infrascriptis adherere cupientes quod cum alias ob
forte peccata et cætera commissa tanta multitudo bruti animalis generis
convoluntium vulgo tamen vocabulo Amblevini seu Verpillion dicti per
vineas et vinetum ipsius parrochie accessisset damna quamplurima ibi
perpetrantis folia et pampinos rodendo et vastando ut ex eis nulli saltem
pauci fructus percipi poterant qui juri cultorum satisffacere possint et
quod magis et gravius erat illa 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 personam debitis sumptis informationibus ac aliis
formalitatibus necessariis prestitis sententia seu ordinatio prolata
comperitur cujus et divinæ potentiæ virtute præcibus tamen et officiis
divinis mediantibus illud flagitium et inordinatus furor prefatorum
brutorum Animalium cessarunt usque ad duos vel circa citra annos quod
veluti priscis temporibus rediere in eisdem vineis et vineto et damna
inextimabilia et incomprehensibilia afferre ceperunt 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 divinæ
cognitioni consistit et remittenda veniunt eo quod Dei arcana cor hominis
comprehendere nequit.

Nihilominus cum certum sit gratiarum dona diversis diversimode fore
collata hominibus et potissimum ecclesiastico ordini ut in nomine Jesu et
virtute ejus sanctissime passionis possit in terris ligare solvere et
flectere iterum ad R. V. recurrentes prius agitata reassumendo et quatenus
opus fuerit de novo procedendo petunt in primis procuratorem aut
defensorem ipsis Animalibus constitui ob defectum præcedentis vita functi
quo facto et ut de expositis legitime constet debeatis inquisitiones et
visitationes locorum fieri per nos aut alium idoneum commissarium
cæterasque formalitates ad hæc opportunas et requisitas exerceri ipso
defensore legitime vocato et audito nec 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
divinæ clementiæ et mandatis suorum ministrorum 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 quomodo sacro die
Penthecostes decima septima mensis maij anno domini millesimo
quingentesimo octuagesimo septimo ego accepi de manibus sindicorum
mandatum exortativum sive ordinationem R{di} generalis Vicarii et
Officialis curie diocesis Maurianne datum in civitate Sancti Johannis
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 congregato publicavi idem
populum michi commissum ad contritionem suorum peccaminum et ad devotionem
juxta meum posse et serie monui processiones missas obsecrationes et
orationes in predicto mandato contentas per tres dies continuos 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
deprecantes Dei omnipotentis clementia pro extirpatione brutorum Animalium
predictas vineas atque alios fructus terre devastantium vulgariter
nuncupatas (sic) Verpilions seu Amblavins in predicto mandato mentionata
sive nominata in quorum fidem ad requisitionem dictorum scindicorum qui
hanc 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 temporalibus episcopatus Maurianne generalis
Vicarius et Officialis dilecto sive vicario Sancti Julliani s ... in
domino. Insequendo ordinationem per nos hodie date presentium latam in
causa scindicorum Sancti Julliani 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 ordinatas 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 Julliani. Igitur vobis mandamus et
injungimus quathenus die dominico Penthecostes in prono vestra ecclesie
parrochialis contenta in dicta ordinatione declarare habeatis populumque
monere et extortari ut illa adimpleant infra terminum tam breve quod fieri
poterit et de ipsis attestationem nobis transmittere. Tenor vero dicte
ordinationis continentis devotiones sequitur et est talis.

Quia licet per testes de nostri mandato et commissarium per nos deputatum
examinatos apparet Animalia bruta contra que in hujusmodi causa parte
prefatorum supplicantium fuit supplicatum intulisse plura dampna
insupportabilia ipsis supplicantibus que tamen dampna potius possunt
attribuenda peccatis supplicantium decimis Deo omnipotenti de jure
primitivo 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 hanc vitam humanam salutem eternam 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 fulminationem
censurarum ecclesiasticarum Sancta Sede Apostolica inconsulta sive ab
eadem ad id potestatem habentibus superioribus nostris sed potius
recurrendum ad misericordiam Dei nostri qui in quacumque hora ingenuerit
peccata propitius est ad misericordiam. Ipsi quamobrem causis premissis et
alliis a jure resultantibus pronunciamus et declaramus inprimis fore et
esse monendos et quos tenore presentium monemus et moneri mandamus ut ad
ipsum Dominum nostrum ex toto et puro corde convertantur cum debita
contrictione de peccatis commissis et proposito confitendi temporibus et
loco opportunis et ab eisdem de futuro 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
passionis et intercessione Beate Marie Virginis et omnium Sanctorum ejus
humiliter exposcendo veniam et quibuscumque peccatis delictis et offensis
contra ejus majestatem divinam factis ut tandem ab afflictionibus
prefatorum Animalium liberare 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 significationem et
notificationem sic ut supra fiendas quibus processionibus durantibus
decantari et celebrari mandamus tres missas altas ante sive post quamlibet
earum processionum 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 quesumus 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 tuum 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 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 nec ...... 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 distulimus fulminare donec 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 ordinationis
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.{s} et Off.{s} gen.{lis} Maurianne.

FAURE

Per eumdem R. D. Maurianne generalem Vicarium et Officialem.

(_locus sigilli._)

MEMORIALE

Anno premisso et die quinta mensis junii comparuerunt judicialiter coram
nobis Vicario generali Maurianne Franciscus Ameneti consindicus Sancti
Julliani asserens venisse a loco sancti Julliani ad fines remittendi in
manibus egregii Anthonii Fillioli procuratoris Animalium brutorum cedulam
signatam _Rembaud_ producendam pro deffensione dictorum Animalium
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 Petremandus Bertrandi
procurator dictorum sindicorum Sancti Julliani agentium petiit copiam
dicte cedule. Inde et nos Vicarius generalis Maurianne prefatus partibus
premissis diem assignamus veneris proximam duodecimam 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 adducendo ea que hoc in
processu antea facto fuerunt et potissimum scedulam productam ex parte
egregii Baudrici procuratoris Animalium signatam _Claudius Morellus_
egregius Anthonius Fillioli procurator et eo nomine a reverendo domino
Vicario constitutus occasione tuendorum ac deffendendorum Animalium de
quibus hoc in processo agitur ut in actis ad quæ 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 procedendi de
eo saltem modo quo hactenus processum fuit maxime cum agitur de
excommunicatione Animalium quod fieri non potest quia omnis excommunicatio
aut fertur ratione contumaciæ _cap. primo_ et ibi Gr. _De sententiis
excommunicationis lib._ 6. at cum certum est dicta animalia in contumacia
constitui non posse quia legitime citari non possunt per consequens via
excommunicationis Agentes uti non possunt nec debent eo maxime quod Deus
ante hominis creationem ipsa Animalia creavit ut habetur Genesi ib.
_Producat terra animam viventem in genere suo jumenta et reptilia et
bestias terre secondum species suas benedixitque eis dicens crescite et
multiplicamini et replete aquas maris avesque multiplicentur super terram_
quod non fecisset nisi sub spe quod dicta Animalia vita fruerentur tum
quod ipse Deus optimus maximus creator omnium Animalium tam rationabilium
quam irrationabilium cunctis Animalibus suum dedit esse et vesci super
terram unicuique secondum 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 tum quia
bruta sensu et usu rationis carentia que non secondum legem divinam
gentium canonicam vel civilem sed secondum legem naturæ primordialis qua
Animalia cuncta docuit vivere solo instinctu naturæ vivunt et ut ait
Philosophus _actus activorum non operantur in patienti_ ...... tum quia
jura naturalia sunt immutabilia § _Sed naturalia Instit.: de jur natur.
gent. et civili._ ergo cum dicta Animalia solo instinctu naturæ 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 debent excommunicatione nec
ullo modo veniunt petita executioni mandanda saltem modo petito presertim
cum ratio et æquitas dicta Animalia non regat. Et licet juribus divino
antiquo civili et canonico promulgatum legitur _Qui seminat metet_ ut
habetur Esai 37 ibi. _In anno autem tertio seminate et mettete et plantate
vineas et commedite fructum earum_ non tamen cequitur (_sic_) quin dicta
Animalia plantis non utantur quia sunt irrationabilia et carentia sensu
neque ea posse dicernere quæ 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
excommunicatione sed ...... peccata eorum universus populus presertim quem
hujusmodi flagella affligunt et prosequuntur et pœnitentiam agat exemplo
Ninivitarum qui ad solam vocem Jone prophete austeriter pœnitentiam
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 sanctissimæ passionis excessum dictorum Animalium compessere
et 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 naturæ 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 nec aliquo modo consentiendo quod dictum monitorium eis
concedatur nec etiam aliqui visitationi vinearum ut est conclusum per
Agentes in eorum supplicatione protestando de omni nullitate et hoc omni
meliori modo via jure ac forma salvis aliis quibuscumque juribus ac
deffentionibus competentibus aut competituris humiliter implorato benigno
officio judicis.

PETRUS REMBAUDUS

MEMORIALE

Anno premisso et die duodecima mensis junii comparuerunt 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 Maurianne
die et anno premissis.

MEMORIALE

Anno premisso et die veneris decima nona mensis junii preassignata
comparuerunt judicialiter coram nobis Vicarium generalem Maurianne prefato
egregius Petremandus Bertrandi procurator Sindicorum Sancti Julliani
Agentium producens cedulam incohantem _Etiam si cuncta_ 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 cedulæ cum termino deliberandi et
respondendi.

Inde et nos Vicarius generalis Maurianne prefatus copia prepetita concessa
partibus premissis diem assignamus veneris proximam vigessimam sextam
hujus mensis junii nisi etc. ad ibidem judicialiter coram nobis
comparendum 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 comparuerunt judicialiter coram nobis Vicario
generali prefato Catherinus Ameneti consindicus Sancti Julliani jurat
venisse cum egregio Petremando Bertrandi ejus procuratore 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 prefatus copia
prepetita concessa partibus premissis diem assignamus sabbati proximi
quartam instantis mensi jullii nisi etc. ad ibidem judicialiter coram
nobis comprehendum est tunc per dictum egregium Fillioli quid voluerit
deliberare deliberandum. Datum Maurianne die et anno premissis.

COPIA CEDULÆ

Etiamsi cuncta ante hominem sint creata ex Genesi non sequitur laxas
habenas concessas fore immo contra ut ibidem colligitur et apud D... in I.
par. q. 26. ar. I. et psal. 8. Corin. 5. hominem fore creatum ac
constitutum ut cœteris creaturis dominaretur ac orbem terrarum in æquitate
et justitia disponeret. Non enim homo contemplatione aliarum creaturarum
habet esse sed contra. Nec 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 adverso inveniatur frustra
resumerentur. Unde inherendo responsis 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 implorato
benigno officio.

FRANC FAETI

MEMORIALE

Anno premisso et die quarta mensis jullii comparuerunt judicialiter coram
nobis Vicario generali Maurianne prefato egregius Anthonius Fillioli
procurator dictorum Animalium producens cedulam incohantem _Licet multis_
signatam _Rembaudi_ 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
inheret 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 comparendum et
tunc per dictum Bertrandi nomine quo supra quid voluerit deliberare
deliberandum. Datum Maurianne die et anno premissis.

COPIA CEDULÆ

Licet multis in locis reperiatur hominem creatum fuisse ut cæteris
Animalibus et creaturis dominaretur non idcirco opus est ut Agentes
adversus dicta Animalia excommunicatione utantur sed via usitata et
ordinaria et præsertim ut dictum est quod dicta Animalia jus naturæ
sequantur quod quidem jus nusquam immitatum (_sic_) reperitur 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 nec 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 Sindicorum totius communitatis Sancti
Julliani producta signata _Fran: Faeti._ nullam penitus mereatur
responsionem obstante quod nihil novi in dicta cedula propositum
comperitur etiam quod contentis cedulæ 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 nec
proponenda videntur presertim ut dictum est quod ratio et equitas dicta
Animalia non regat quapropter egregius Anthonius Fillioli nemine dictorum
Animalium suppra relatorum suœ cedule et fieri recuisitis inhœrendo
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

MEMORIALE

Anno premisso et die decima octava mensis jullii comparuerunt judicialiter
coram nobis Vicario prefato egregius Petremandus Bertrandi procurator
Agentium petens alium terminum. Hinc et egregius Fillioli procurator
dictorum Animalium petit viam precludi parti quidquam ulterius
articullandi et deducendi et inherendo suis cedulatis petit sibi justitiam
ministrari. Inde et nos vicarius generalis Maurianne prefatus de consensu
procuratorum dictarum partium ipsis partibus diem assignamus 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 mensis juli comparuerunt
judicialiter coram nobis Vicario generali Maurianne prefato egregius
Petremandus Bertrandi procurator Sindicorum Agentium produxit
testimoniales sumptas per communitatem Sancti Julliani congregatam coram
visecastellano Maurianne continentes declarationem loci quem offerunt
relaxare et assignare eisdem Animalibus pro eorum pabulo quathenus
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 obedientiæ vineta loci predicti Sancti
Julliani relinquere et in locum assignatum accedere et divertire ne
deimpceps (deinceps) officiant eisdem vineis que sunt usui humano
pernecessariæ et alias ulterius super cause exigentia provideri benignum
officium R. D. V. implorando et ita intimari egregio Fillioli procuratori
ex adverso.

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 Françys 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 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 contre les Animaulx brutes vulgairement
appelez Amblevins pardevant 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 lieu de
Sainct Jullien 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 Jullien audessus du village de
Claret jouxte la Combe descendant 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 cinquante 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 quantité a laquelle les susnommes au nom de ladicte
communaulte lon 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 necessayre a quelque lieu ou endroit ou lon ne puisse passer par
ledict lieu sans fere aulcung prejudice a la pasture desdicts Animaulx
comme aussi dy pouvoir tirer mynes de colleurs 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 susdictes 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 Jullien 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
_curial_

MEMORIALE CONTINUATIONIS

Anno premisso et die undecima mensis augusti comparuerunt im banco actorum
judicialium episcopatus Maurianne procuratores ambarum partium qui citra
prejudicium jurium ipsarum partium prorogaverunt et 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 comparuerunt in eodem bancho
egregius Petremandus Bertrandi et Anthonius Fillioli procuratores partium
lictigantium quiquidem de consensu eorumdem et citra prejudicium jurium
partium et actento transitu armigerorum 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 comparuerunt judicialiter
coram nobis Vicario generali Maurianne prefato egregius Anthonius Fillioli
procurator Animalium brutorum qui visis testimonialibus productis parte
dictorum Agentium continentibus assignationem loci quem obtulerunt
relaxare et assignare dictis Animalibus pro eorum pabulo dicit eumdem
locum non esse sufficientem nec idoneum pro pabulo dictorum Animalium cum
sit locus sterilis et nullius 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 Julliani Agentium dicit locum
destinatum et oblatum esse idoneum plenum virgultis et parvis arboribus
prout ex testimonialibus oblationis constat et latius constare quathenus
opus sit offert 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 coloris viridis
Supplicata_

Visis actis dictorum Agentium signanter primo memoriali 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 incipiente _Ut appareat_
etc. signata _Claudius Morellus_--tenore supplicationis porrecte parte
dictorum Agentium--tenore monitorii abjecti desuper ipsa supplicatione
sub die 25 aprilis anni predicti 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 signatis _Daprili_--cedula producta nomine
ipsorum Animalium incipiente _Visitatio_ et signata _Claudius
Morellus_--allia cedula producta parte dictorum Agentium incipiente _Etsi
rationes_ etc. signata _Petrus de Collo_--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
Rembaudus_--allia cedula producta parte Agentium signata _Franciscus
Faeti_ incipiente _Etiam si cuncta_ etc.--allia cedula producta pro parte
Animalium incipiente _Licet multis_ etc. signata _Petrus
Rembaudus_--memoriali tento sub die vicesima quarta mensis jullii proxime
fluxi--testimonialibus signatis _Prunier_ sumptis coram Vicecastellano
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.

Nos Vicarius generalis Maurianne subsignatus antequam 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)

_locus sigilli._

Solverunt Scindici Sancti Julliani incluso processu Animalium sigillo
ordinationum et pro copia que competat in processu dictorum Animalium
omnibus inclusis XVI flor.

Item pro sportulis domini Vicarii III flor--20 decembre 1587.

Published by Léon Ménebréa in the appendix to his treatise: _De l’Origine,
de la forme et de l’esprit des jugements rendus au Moyen-âge contre les
Animaux_, Chambery, 1846. Cf. _Mémoires de la Société Royale Académique de
Savoie_, Tome xii. pp. 524-57, where it first appeared.

* * * * *

According to M. J. Desnoyers (_Recherches sur la coutume d’exorciser et
d’excommunier les insectes et autres animaux nuisibles à l’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, consecrated boughs, and
extraordinary processions, for the purpose of expelling noxious insects
from the vineyards and warding off disease from the grapes and the
silkworms. These ceremonies are accompanied with adjurations 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 recedatis ab his campis, pratis, hortis, vineis, aquis, si
Dei providentia adhùc vitam vobis indulgeat, nec amplius in eis habitetis,
sed ad illa ac talia loca transeatis, ubi nullis Dei servis nocere
poteritis. Vobis, si per maleficium diabolicum hic estis, pro parte
divinae majestatis, totius curiae coelestis, necnon ecclesiae hic adhùc
militantis, impero, ut deficiatis in vobisipsis, ac decrescatis, quatenus
reliquiae de vobis nullae 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
Exorcismorum, Coloniae_, 1626, p. 1204.

II[4]

DE L’EXCELLENCE DES MONITOIRES

PAR GASPARD BAILLY

Il ne favt pas mépriser les Monitoires, veu que c’est vne chose grandement
importante, portant auec soy le glaiue, le plus dangereux dont nostre Mere
sainte l’Eglise se sert, qui est l’Excommunication, qui taille aussi bien
le bois sec que le verd, n’épargnant ny les viuans, ni les morts; et ne
frappe pas seulement les Creatures raisonnables, mais s’attache aux
irraisonnables, tels que sont les animaux. Les exemples en sont fréquens,
pour preuue de cette verité. Car on a veu en plusieurs endroits qu’on a
excommunié les bestioles et insectes, qui apportoient du dommage aux
fruits de la terre, et obeïssans aux commandemens de l’Eglise se
retiroient dans le lieu ordonné par la sentence de l’Euesque qui leur
formoit leur procès. Au Siecle passé, il y auoit telle quantité
d’Anguilles dans le Lac de Geneue, qu’elles gastoient tout le Lac: De sort
que les Habitans de la Ville et enuirons, recoururent à l’Euesque pour
les Excommunier, ce qu’ayant esté fait, le Lac fut deliuré de ces
animaux.

Du temps de Charles Duc de Bourgogne fils de Philippe le Bon, il y eut
telle quantité de Sauterelles en Bresse, en Italie qu’elles mirent presque
la famine dans tout le Mantoüan, si on n’y eût apporté du secours par
l’Excommunication, et de ce nous parle Altiat dans ses Emblémes, sous
l’intitulation _nihil reliqui_.

_Scilicet hoc deerat post tot mala denique nostris,
Locustæ vt raperent, quidquid inesset agris.
Uidimus innumeras Euro Duce tendere turmas;
Qualia non Athilæ, Castrave Cersis erant.
Hæ fænum milium farra omnia consumpserunt;
Spes in Augusto est, stant nisi vota super._

On raconte en la vie de S. Bernard, qu’il se leua vne si grande quantité
de Mouches, d’vne Eglise qu’on auoit basti à Loudun, que par le myen du
bruit qu’elles faisoient, elles empéchoient à 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 paué de l’Eglise.

Nous lisons qu’en l’année 1541, il y eut vne telle quantité de Sauterelles
en Lombardie, qui tomberent d’vne nuëé; qu’ayant mangé 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 l’Air de si mauuaises odeurs, que les
Courbeaux et autres animaux carnassiers ne les pouuoient supporter.

On dit aussi qu’en Pologne il y eut aussi telle quantité de ces animaux au
commencement sans aisles, et apres ils en eurent quatre, qu’ils couuroient
deux mille, et d’vne coudée d’auteur, et tellement épaisses qu’en volant
elles leuoient la veüe de la clarté du Soleil, ces animaux firent un
dégat non-pareil aux biens de la terre, et ne purent estre chassés par
autre force ny industrie, que par la malediction Ecclesiastique.

Saint Augustin raconte au Liure de la Cité de Dieu, Chap. dernier, qu’en
Afrique il y eut telle quantité de Sauterelles, et si prodigieuses,
qu’ayans mangé tous les fruits, feüiles, et écorces des arbres iusques à
la racine, elles s’éleuerent comme vne nuëe; et tombées en la Mer,
causerent vne peste si forte, qu’en vn seul Royaume il y morut huit cens
mille Habitans.

Du temps de Lotaire troisième Empereur apres Charlemagne, 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, blé, et foins, et tels
animaux ayans esté jettés à la Mer; il s’ensuiuit vne telle corruption en
l’Air, que la peste rauageât grande quantité de monde en ce pays là. Voilà
quantité d’exemples quo nous font voir le dommage que nous apportent ces
bestioles et insectes. Maintenant voyons comme on leur forme leur procés
afin de s’en garantir par le moyen de la malédiction que leur donne
l’Eglise.

Premièrement, sur la Requeste presentée par les Habitans du lieu qui
souffrent le dommage, on fait informer sur le dégat que tels animaux ont
fait, et estoient en danger de faire, laquelle information rapportée, le
Juge Ecclesiastique donne vn Curateur à ses bestioles pour se présenter en
jugement, par Procureur, et là deduire toutes leurs raisons, et se
defendre contre les Habitans qui veulent leur faire quitter le lieu, où
elles estoient, et les raisons veuës et considerées, d’vne part et d’autre
il rend sa Sentence. Ce que vous verrez clairement par le moyen du
plaidoyer suiuant.

_Requeste des Habitans_

Svpplie hvmblement N. Exposans comme riere le liieu de N. il y a quantité
de Souris, Taupes, Sauterelles et autres animaux insectes, qui mangent les
blés, vignes et autres fruits de la terre, et font vn tel dégat aux blés,
et raisins qu’ils n’y laissent rien, d’où les pauures supplians souffrent
notable prejudice, la prise pendante par racine estant consommée par ces
animaux, ce qui causera vne famine insupportable.

Qui les fait recourir à la Bonté, Clemence et Misericorde de Dieu, à ce
qu’il vous plaise faire en sorte que ces animaux ne gastent, et mangent
les fruits de la terre qu’il a pleu à Dieu d’enuoyer pour l’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 à genouy les larmes à l’œil,
recourent à votre Iustice, 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 aués des armes plus fortes que les Soldats de cette Empereur pour
garantir les pauures supplians de la faim et necessité de laquelle ils
sont menacés, par le rauage que font ces bestioles, qui n’épargnent ny
blé, ny vignes; rauage semblable à 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
enuoyé par Themis à Thebes, qui n’épargnoit ny les fruits de la terre, ny
le bestail attaquant les Paysans mesmes. Vous sçauez assez les maux que
raporte la faim, vous aués trop de douceur, et de Iustice pour les laisser
engager dans cette misere qui contraint à s’abandonner à des choses
illicites, et cruelles, _nec enim rationem patitur, nec vlla æequitate
mitigatur: nec prece vlla flectitur esuriens populus_: Témoins les Meres
dont il est parlé au quatrième des Roys, qui pendant la famine de Samarie,
mangerent les enfans, l’une de l’autre. _Da filium tuum, vt comedamus
hodie, et filium meum comedimus cras: Coximus ergo filium meum, et
comedimus. Quid turpe non cogit fames, sed nihil turpe, nihilve, vetitum
esuriens credit, sola enim cura est, vt qualicumque sorte iuuetur._ La
mort qui vient par la famine est la plus cruelle entant qu’elle est pleine
de langueurs, débilités et foiblesses de cœur, qui sont autant de
nouuelles, et diuerses especes de mort.

_Dura quidem miseris, mors est, mortalibus omnis,
At perijsse fame, Res vna miserrima longè est._

Et Auian Marcellin dit, _Mortis grauissimum genus, et vltimum malorum fame
perire_. Ie crois que vous aurés compassion, de ce pauuve Peuple, si on
vous le represente, par aduance en l’estat qu’il serait reduit si la faim
l’accabloit.

_Hirtus erat crinis, cana lumina, pallor in ore,
Labia incana siti, scabri rubigine dentes.
Dura cutis, per quam spectari viscera possunt.
Ossa sub incuruis extabant arida lumbis;
Ventus erat, pro ventre locus._

Les Gabaonistes, reuestus d’habits dechirés, et des visages affamés, auec
de contenances toutes tristes, firent pitié et compassion au grand
Capitaine Iousë, et en cét estar obtiendrent grace et misericorde.

Les Informations et visites qui ont esté faites par vos commandements,
vous instruisent suffisamment du dégat que ces animaux ont fait. Ensuite
dequoy on a fait les formalités requises et necessaires, ne restant plus
maintenant que d’adjuger les fins et conclusions prises par la Requeste
des demandeurs, qui sont ciuiles et raisonnables, sur lesquelles il vois
plaira de fairé reflection, et à cét effet leur enioindre de quitter le
lieu et se retirer dans la place qui leur sera ordonnées en faisant les
execrations requises et necessaires, ordonnées par nostre Mere Sainte
l’Eglise, à quoy les pauures demandeurs concluent.

_Plaidoyer pour les Insectes_

Messievrs, dépuis que vous m’aués choisi pour la defense ces pauures
bestioles, il vois plaira que je remontre leur droit, et fasse voir que
les formalités, qu’on a faites contre elles, sont nulles: m’étonnant fort
de la façon qu’on en vse, on donne des plaintes contre elles, comme si
elles auoient commis quelque crime, on fait informer du dégat qu’on
pretend qu’elles ayent fait, on les fait assigner par-deuant le Juge pour
respondre, et comme on sçait qu’elles sont muettes, le Juge voulant
suppleer à 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 liberté de parler pour les pauures animaux, je diray
pour leur defence en premier lieu.

Qve l’adiovrnement laxé contr’elles est nul comme laxé 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 priués
de cette lumiere qui a esté donnée au seul homme, il faut conclurre par
necessaire consequence, que telle procedure est nulle; cecy est tiré de la
Loi premieree, _ff. si quadrupes, pauper feciss. dicat_; et voyci les
mots. _Nec enim potest animal, iniuriam fecisse, quod sensu caret._

La seconde raison est, que l’on ne peut appeller personne en jugement sans
cause; car autrement celuy qui fait adjourner quelqu’vn sans raison, il
doit subir la peine portée sous le tiltre des instituts _de pœn. tem.
litig._ Mais ces animaux ne sont obligés par aucune cause, ny en aucune
façon, _non tenentur enim ex contractu_, estans incapables de contracter,
_neque ex quasi contractu, neque ex stipulatione, neque ex pacto_, moins
_ex delicto, seu quasi_; parce que comme il a esté dit cy-deuant, pour
commettre vn crime, il faut estre capable de raison, qui ne se rencontre
pas aux animaux, qui sont priués de son vsage.

De plus dans la Iustice, on ne doit rien faire qui ne porte coup, la
Iustice en cela imitant la Nature; laquelle, comme dit le Philosophe, ne
fait rien mal à propos, _Deus enim, et Natura nihil operantur frustra_. Je
laisse à penser quest-ce qu’on pretend de faire ayant adjourné 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 priuées de raisonnement, en sorte que tel adjournement ne pouuant
auoir aucun effect, est nul. Si donc l’adjournement 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 quæ
consequuntur locum habent_.

On dira peut-estre que si bien tels animaux, ne peuuent constituer vn
Procureur, pour la defense de leur droict, 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 selon la disposition du droict, _In administratione suæ
iurisdictionis_, mais non pas en ce cas, où la partie n’en pouuait
constituer, le Juge aussi, ne le peut faire, cecy est décidé par la glose
de la Loy 2 _ff. de administrat. res ad Civit. pertinent_, et pour preuue
de cette proposition faite à propos L’axiaume qui dit _quod directè fieri
prohibetur, per indirectum concedi non debet, cap. tuae de procuratoribus,
gloss. c. 1. 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 à quel sujet
vser contre des bestioles qui sont sans defense, du plus rigoureux glaiue
que l’Eglise aye en sa main, qui ne punit et ne châtie que les Criminels;
ces animaux estans incapables de faire faute, ni peché, parce que pour
pecher il faut auoir la lumiere de la raison laquelle dicernant 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 liberté de prendre l’vn et laisser l’autre.

On vovdra peut-estre dire qu’elles ont manqué en ce qu’elles ne se sont
presentées ayant esté adjurnées, et partant que la Contumace et defaut
estant vn crime, on peut faire rendre contre elles Sentence Contumaciale,
à cause de leur desobeïssance: Mais à cela on respond qu’il ny a point de
Contumace, ou il n’y a point d’adjournement, ou du moins qui soit valable
_quia paria sunt non esse citatum, vel non esse legitimè citatum, ita dd.
communiter Bartol., in l. ea quae C. quomodo_, etc.

De plus, si on prend garde à la définition de l’Excommunication, on verra
qu’on ne peut prononcer telle Sentence contre ces animaux: car
l’Excommunication est dite _extra Ecclesiam positio, vel è qualibet
communione, vel è quolibet legitimo actu separatio_. Tellement que tels
animaux ne peuuent estre dechassés de l’Eglise, n’y ayans jamais esté,
d’autant qu’elle est pour les hommes qui ont l’ame raisonnable, non pas
pour les brutes, qui ne sont doüées d’aucune raison, et l’Apostre S. Paul
_ad Corinth._ 5 dit _quòd de iis quae foris sunt nihil ad nos quoad
Excommunicationem, quia Excommunicare non possumus_, l’Excommunication
_afficit animam non corpus, nisi per quandam consequentiam, cuius Medicina
est_, cap. 1, _de sentent. Excomm. in_ 6. C’est pourquoy l’ame de ces
animaux, n’estant immortelle, elle ne peut estre touchée par telle
Sentence, _quae vergit in dispendium aeternae salutis_.

L’autre raison est, _quòd facienti actum permissum non imputatur, id quod
sequitur ex illo, licét consecutiuum sit repugnans statui_ suo cap. _de
occidendis_ 23 q. 5 cap. _sicut dignum extra de homicid_. Ces animaux font
vn acte permis mesme par le droit Diuin. Car il est dit dans la Genese
_fecit Deus bestias terrae iuxta species suas, iumenta, et omne reptile
terrae in genere suo dixitque Deus, ecce dedi vobis, omnem 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 mouentur in
terris, et in quibus est anima viuens; vt habeat ad vescendum_. Que si les
fruits de la terre ont esté faits pour les animaux et pour les hommes, il
leur est permis d’en manger et prendre leur nourriture, aussi Cicéron dit
au premier des Offices _principio generi omnium animantium est à natura
attributum, vt se vitam, corpusque tueantur, quaeque ad vescendum
necessaria sunt 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 par ainsi ils ne peuuent estre punis, ny maudis, _cum etiam
creaturae intellettuali, et rationali delinquenti seu damnum afferenti, eo
quòd secundum solitum facit; non est Angelo licitum maledicere, multo
minùs erit licitum homini_, veu qu’on lit dans l’Epistre de S. Iude, _cum
altercaretur Michaël cum Diabolo de corpore Moysis non fuit ausus
maledicere_ Cap. _Si igitur Michaël_, 23. _q._ 3. S. Thomas 2. 2. _q._ 76.
dit que de donner des maledictions aux choses irraisonnables, estans
Creatures de Dieu s’est peché de blasphemer et de les maudire, les
considérans en eux mesmes, _est otiosum, et vanum, et per consequens
illicitum_.

Que si toutes ces raisons ne vous touchent, peut-estre cette-cy vous féra
donner les mains, et persuadera à vostre Esprit, qu’on ne peut donner
aucune sentence d’Excommunication contre elles ny jetter aucun Anatheme.
Car prononçant telle Sentence s’est s’en pendre à Dieu, qui par sa justice
le enuoye pour punir les hommes et chastier leurs péchés, _immitamque in
vos bestias agri quae consumant vos, et pecora vestra, et ad paucitatem
cuncta redigant_, pouuant dire maintenant ce que Dieu a dit auant le
Deluge _omnis Caro corrupit viam suam_. Et Ouide en ses Metamorphoses
voyant que le vice auoit pris le haut bout, Triomphant, et faisant des
conquestes par tout, au contraire la vertu estoit abaissée, exilée, et
reduite en tel estat qu’elle ne treuuoit aucune demeure parmy les Hommes.

_Protinus irrupit venæ prioris in æuum,
Omne nefas, fugere pudor, verùmque fidésque,
In quorum subiere locum, fraudésque, dolùsque.
Insidiæque, et ars, et amor sceleratus habendi,
Uiuitur ex rapto, non hospes ab hospite tutus,
Non socer à genero, fratrum quoquè gratia rara est,
Imminet exitio vir, conjugis, illa mariti
Liuida terribiles miscent aconitæ nouercæ
Filius ante diem, patrios inquirit in annos,
Uita iacet pietas, et virgo cæde madentes.
Ultima Cilestum, Terras Astrea reliquit._

Par les quelles raisons on voit, que ces animaux sont en nous
absolutoires, et doiuent estre mis hors de Cour et de Procès, à quoy on
conclud.

_Replique des Habitans_

Le principal motif qu’on a rapporté pour la deffense de ces animaux, est
qu’estans priués de l’vsage de la raison, ils ne sont sommis à aucunes
Loix, ainsi que dit le Chapitre _cum mulier_ 1. 5. q. l. la _l. congruit
in fin_. et la Loix suiuante. _ff. de off. Praesid. sensu enim carens non
subjicitur rigori Iuris Ciuilis._ Toutesfois, on fera voir que telles Loys
ne peuuet militer au fait qui se présente maintenant à juger, car on ne
dispute pas de la punition d’vn delict commis; Mais on tasche d’empescher
qu’ils n’en commettent par cy-après, et partant ce qui ne seroit loisible
à vn crime commis, et permis afin d’empescher _ne crimen committatur_.
Cecy ce preuue par la Loy _congruit_ sus cité, où il est dit qu’on ne peut
pas punir vn furieux et insensé 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 cét Axiome est vray, ie me sers de l’authorité du Chapitre _omnis
vtriusque sexus de poenitent. et remiss._ ou il est dit qu’on peut
deceller ce qu’on a pris si on ne la pas executé, afin d’y rapporter du
remede, cette proposition est confirmée par la glose _in cap. tua nos ext.
de sponsal._ qui dit qui si quelqu’vn s’accuse d’auoir Fiancé une fille,
par parolles de présent; on pourra deceller ce qui a esté dit, afin que le
Mariage se consume. La raison est, qu’ayant espousé telle fille, si on nie
de l’auoir fait, et on refuse d’accomplir le Mariage, _Videtur esse
delictum successiuum, et durare vsque illam acceperit, vt ergo tali
delicto obuietur_. Il este loisible de publier ce qu’on a pris
secretement Estant vray par les raisons deduites qu’on a peu adjourner,
tels animaux, et que l’adjournement 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. Il reste maintenant de respondre à ce
qu’on a aduancé à sçauoir que tels animaux ne peuuent estre Excommuniés,
Anathematisés, maudis ny execrés; à cela il semble que se serait doubter
de la puissance que Dieu a donné à l’Eglise, l’ayant fait Maitresse de
tout l’Vnivers, comme sa chere Espouse, de qui on peut dire, auec le
Psalmiste, _omnia subiecisti sub pedibus ejus, oues, et boues et omnia quæ
mouentur in aquis_, et estant conduite par le S. Esprit, ne fait rien que
sagement, et s’il y a chose où elle doiue monstrer son pouuoir, c’est à la
Conservation du plus parfait ouurage de son Espoux; à sçauoir de l’Homme,
qu’il a fait à son Image et semblance, _faciamus hominem, ad imaginem, et
similitudinem nostram_ et luy a donné le Gouuernement de toutes les choses
crées _crescite et multiplicamini et dominamini piscibus maris,
volatilibus cœli, et omnibus animantibus Cœli_; Aussi Pline en son Liure
premier de l’Histoire naturelle dit _quod causâ hominis, videtur cuncta
alia genuisse natura_. Les Jurisconsultes sont d’accord, _quod hominis
gratia, omnes fructus à natura comparati sunt, l. pecudum. ff. de vsur. et
§. partus ancillarum. instit. de rer. diuis._ et Ouide descriuant
l’excellence de l’Homme parle de la sorte,

_Pronaque, cum spectent animalia cæetera terras
Os homini sublime dedit, cælumque tueri
Iussit, et erectos ad sidera tollere vultus._

et vn autre Poëte,

_Nonne vides hominem, vt Celsos ad sidera vultus
Sustulerit Deus, ac sublimia finxerit ora.
Cum pecudes, volucrumque genus, formasque ferarum,
Segnem, atque obscænam, passuri strauisset in aluum._

Picus Mirandulanus, en vne de ses Oraison parlant de la grandeur de
l’Homme dit _hominem tantœ excellentiae, ac sublimitatis esse, vt in se
omnia continere dicatur, vti Deus, sed diuersimodè, Deus enim omnia in se
continet, vti omnium medium principium, homo verò, in se omnia continet,
vti omnium medium, quo fit, vt in Deo sint omnia meliore nota, quàm in
seipsis, in homine inferiora nobiliori sint conditione, superiora autem
degenerent sicut aër, ignis, aqua et terra per verissimam proprietatem
naturœ suœ, in crasso hoc, et terreno, hominis corpore, quo nos videmus,
hinc etenim nulla creata substantia seruire dedignatur, hinc Terra, et
Elementa, huic bruta præesto sunt, famulantur, hinc militat cælum, hinc
salutem bonumque procurant Angelicœ 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 priué, et que de chétifs animaux,
prissent leur norriture, à l’exclusion de l’Homme pour qui ils sont
destinés de Dieu. C’est sur ce sujet qu’il dit _Increpabo pro te locustas
dummodò posueris de fructibus tuis in horrea mea_.

Et pour responce à 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 l’espece
qu’on traitte, on ne les considere pas, comme animaux simplement: mais
comme apportans du mal aux Hommes, mangeans et détruisans les fruits qui
seruent à son soutient, et nourriture.

Mais à quoy, nous arrestons-nous depuis qu’on voit par des exemples
infinis que quantité de saints Personnages, ont Excommunié des animaux
apportans du dommage aux Hommes. Il suffira d’en rapporter vn pour tout,
qui nous est cogneu, et familier, que nous voyons continuellement, à
sçauoir dans la ville d’Aix, où S. Hugon Euesque de Grenoble Excommuniat
les serpens, qui y estaient en quantité à 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 arresté, par le moyen de telle Excommunication,
que si quelqu’vn est piqué hors de ce lieu par les mesmes Serpens, la
piqueure sera venimeuse et mortelle ainsi qu’on a veu par plusieurs fois.
Ie laisse à part quantité de passages de l’Escripture par lesquels on voit
que Dieu a donné des maledictions aux choses inanimées, et Creatures sans
raison, ainsi qu’on pourra voir au _Leuitic. Ch. 26. et Deutheronome 27.
Genes. 2._ il maudit le Serpent _Maledictus es, inter omnia animantia, et
bestias Terræ_.

De dire, qu’excommuniant, Anathematisant tels animaux, s’est s’en prendre
à Dieu, qui les a enuoye pour le chastiment des hommes. A cela on respond
que ce n’est pas s’ens prendre à Dieu que de recourir à l’Eglise, et la
prier de diuertir, et chasser le mal, qu’il a pleu à sa Diuine Majesté de
nous enuoyer, à cause de nos fautes et pechés; au contraire c’est vn acte
de Religion que de recourir à elle, lors q’on voit que Dieu leue sa main
pour nous frapper.

_Conclusion du Procureur Episcopal_

Les defenses rapportées par l’Aduocat de ces animaux, contre les
Conclusions prises par les Habitans sont considerables qui meritent qu’on
les examine meurement; car il ne faut pas ietter le carreau
d’Excommunication à la volée, et sans sujet, estant vn foudre qui est si
agissant, que s’il ne frappe celuy contre lequel on le jette, il embrase
celuy qui le lance. Le discours de cét Aduocat est appuyé sur la règle de
Droict, qui dit, _qui iussu iudicis aliquid facit, pœnam non meretur_, et
vrayement c’est le Iuge des Iuges, qui ne laisse rien d’impuny, et qui
distribue les peines à l’égal des offences, sans auoir égard à personne,
de qui les jugemens nous sont incognus, _quàm abscondita iudicia Dei,
inuestigabiles viæ ejus_. C’est vne Mer profonde d’ont on ne peut
découurir le fonds. De dire pourquoy il a enuoyé 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 à leurs portes, estant vn Arrest infaillible, que qui fait aux
pauures la sourde oreille, attende de Dieu la pareille.

Ceux qui donnent l’aumosne sont toûjours sous la protection Diuine, aussi
S. Gierosme dit _non memini me legisse mala morte 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 l’aumône aux pauures, _si non pauisti necasti, pascendò seruare
poteras_, de mesmes la Loy _de lib. agnoscend._ repute pour homicide celuy
qui denie, et refuse les alimens à ceux qui en ont besoin, et le Prophete
Ezechiel, c. 18. parlant de la recompense, que Dieu a destinée à ceux qui
font du bien aux pauures, _qui panem suum esurienti dederit et nudum
operuerit vestimento, justus est, et vità viuet_; Lesquelles paroles
Eusèbe expliche de la sorte, _fregisti esurienti panem tuum, in Coelo
vitae pane qui Christus est satiaberis, hic peregrinis domus tua patuit,
in domo Angelorum, Ciuis efficieris tu hic trementia membra destijsti,
illic liberaberis ab illo frigore, in quo erit fletus, et stridor
dentium_.

C’est vn acte de Charité, que d’assister le pauures, _frange esurienti
panem tuum et egenos, vagosque indue in domum tuam, cum videris nudum,
operi eum, et carnem tuam ne despexeri_, dit Iosuë c. 38. aussi la
récompense est asseurée, ainsi qu’escrit S. Mathieu cap. 25. _venite
Benedicti patris mei, possidete paratum vobis regnum à constitutione
mundi; esuriui enim, et dedistis mihi manducare; 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 œuure de Misericorde d’auuoir compassion de son prochain, ainsi
que dit S. Ambroise _lib. 2. off. cap. 28. hoc maximum Misericordiæ, vt
compatiamur alienis calamitatibus necessitates aliorum, quantum possumus
iuvemus, et plus interdum quàm possumus_ l’Hospitalité est recommandée par
S. Paul _hospitalitatem nolite obliuisci, per hanc enim placuerunt quidam,
Angelis hospitio receptis_, et S. Augustin _disce Christiane sine
discretione exhibere hospitalitatem, ne fortè cui domum clauseris, cui
humanitatem negaueris ipse sit Christus_. L’ordinaire recompence qui suit
l’aumosne est le centuple, _honora Dominum de tua substantia, et de
primitiis omnium fructuorum tuorum de pauperibus, et implebuntur horrea
tua saturitate et vino torcularia tua redundabunt_. Les abismes de la
Diuinité ne s’épuisent jamais, pour donner, et le sage Salomon, _fæneratur
Domino qui miseretur pauperi, et vicissitudinem suam reddet_. S. Paul aux
Corinthièns Chap. 2. parle de la sorte, _qui administrat semen seminanti,
et panem ad manducandum præstabit, et multiplicabit semen suum_.

Seroit-ce point à cause des irreuerences qu’on commet aux Eglises pendant
le service Diuin, ou sans aucun égard à la presence de Dieu, _conduntur
stupra, tractantur lenocinia, adulteria meditantur, frequentiùs deniquè;
in ædituorum cellulis quòd in ipsis lupanaribus flagrans libido
defungitur_, pour parler auec Tertullien; car c’est là bien souuent où se
donne le mot, où se prennent les assignations, où se lancent les
meschantes œilliades, _Impudicus oculus, impudici cordis est nuncius_, dit
S. Augustin. Sur tous les arbres et plantes, qui estaient en Ægypte, le
péché était consacré à Harpocrates qui prenait soin du langage qu’on
deuait tenir aux Dieux, parce que le fruit du peché ressemble au cœur, et
la feuille à la langue, inférant de là que ceux qui allaient aux Temples,
deuoient penser saintement honestement, et sombrement parler.

Numa Pompilius ne volut pas qu’on assistât au culte Diuin par maniere
d’aquit: Mais qu’en quittant toutes choses, on y employat entièrement sa
pensée, 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
Ruës aucun bruit, et lors que les Prestres faisoient le Sacrifices et
ceremonies, il y auoit des Sergens qui crioent au Peuple que l’on se tue,
laissant toute autre œuvre pour estre attentif au Culte.

Que si les Payens ont esté si exats en leur fausse Religion au Culte de
leurs Idoles, et imaginaires Diuinités, 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 Iuste iusticier, qui ne laisse rien impuni
toutesfois la Iustice ne tient pas si fort le haut bout, que la
misericorde, n’y treuue place. Il est autant Misericordieux que Iuste, et
s’il enuoit quelques aduersités aux pecheurs et les visite par quelque
coup de fouët: C’est pour les aduertir de faire penitence, par le moyen
de laquelle ils puissent détourner 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 pechés.

Nous voyons ces habitans la larme à l’œil, qui demandent pardon d’vn cœur
contrit de leurs fautes, ayans horreur des crimes commis par le passé, et
employent l’assistance de l’Eglise pour les soulager en leurs nécessités,
et détourner le Carreau qui leur pend sur la teste, estans menacés d’vne
famine insuportable si vous ne prenés leur droit, et cause en protection,
et faire déloger ces animaux, qui les menaçent d’vne ruine totale, à quoy
nous n’empeschons.

Concluans à cét 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, à ce conuenables et accoustumées.

_La Sentence du Iuge d’Eglise_

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 à 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 praedicta animalia per nos moneantur, et
remediis Ecclesiasticis mediantibus compellantur, à territorio dicti loci
abire, visisque diligenter, inspectis causis praedictae supplicationis,
necnon pro parte, dictarum Erucarum, seu animalium, per certos
Conciliarios eosdem, per nos deputatos, propositis et allegatis, audito
etiam super praemissis promotore, ac visâ certâ informatione, et
ordinatione nostra, per certum dictae Curiae, Notarium, de damno 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 exhibitione, et sicut Misericordia Dei, peccatores ad se
cum humilitate reuertentes non respuit, ita ipsius Ecclesia eisdem
recurrentibus, auxilium seu etiam solatium qualecunque denegare non debet.

Non praedictus, in re quamquam noua, tam fortiter tamen efflagitata
Maiorum vestigiis inhaerendo, pro tribunali, sedentes, ac Deum prae oculis
habentes, in eius Misericordiâ, 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 pœnis
Maledictionis, ac Anathematisationis, vt infrà sex dies, à Monitione in
vim sententiae huius, à vineis, et territoriis huius loci discedant,
nullum vlterius ibidem, nec alibi documentum, praestitura, quod si infrà
praedictos dies, iam dicta animalia, huic nostrae admonitioni non
paruerint, cum effectu. Ipsis sex diebus elapsis, virtute et auctoritate
praefatis, illa in his scriptis Anathematizamus, et maledicimus,
Ordinantes tamen, et districtè praecipientes, praedictis habitantibus,
cuiuscumque gradûs, ordinis, aut conditionis existant, vt faciliùs ab
Omnipotente Deo, omnium bonorum largitore, et malorum depulsore, tanti
incommodi liberationem, valeant promereri, quatenùs bonis operibus, ac
deuotis supplicationibus, iugiter attendentes, de caetero suas decimas,
sine fraude secundum loci approbatam consuetudinem persoluant,
blasphemiis, et aliis peccatis, praesertim publicis sedulò abstineant.

Allegation, replication, and judgment in the process against field-mice at
Stelvio in 1519.

KLAG

Schwarz Mining hat sein Klag gesetzt wider die Lutmäuse in der Gestalt,
dass diese schädliche Tiere ihnen grossen merklichen Schaden tun, so wurde
auch erfolgen, wenn diese schädliche Tiere nit weggeschaft werden, dass
sie ire Jarszinse der Grundherrschaft nit nur geben könnten und verursacht
wurden hinweg zu ziehen, weil sie solcher Gestalten sich nit wüssten 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
männiglich bewusst, dass sie allda in gewisser Gewöhr und Nutzen sitzen,
darum aufzulegen sei----: Derentwegen er in Hoffnung stehe, man werde
ihnen auf heutigen Tage die Nutz und Gewöhr mit keinem Urtel nehmen oder
aberkennen. Im Fall aber ein Urtel erging, dass sie darum weichen müssten,
so sey er doch in Hoffnung, dass ihnen ein anders Ort und Statt geben soll
werden, uf dass sie sich erhalten mögen: es soll ihnen auch bei solchem
Abzug ein frei sicher Geleit vor iren Feinden erteilt, es seyn Hund
Katzen oder andre ihre Feind: er sey auch in Hoffnung, wenn aine schwanger
wäre, dass derselben Ziel und Tag geben werde, dass ir Frucht fürbringen
und alsdann auch damit abziehen möge.

URTEL

Auf Klag und Antwort, Red und Widerred, und uf eingelegte Kundschaften und
Alles was für Recht kommen, ist mit Urtel und Recht erkennt, dass die
schädlichen Tierlein, so man nennt die Lutmäuse, denen von Stilfs in Acker
und Wiesmäder nach Laut der Klag in vierzehn Tagen raumen sollen, da
hinweg ziehen und zu ewigen Zeiten dahin nimmer mehr kommen sollen; wo
aber ains oder mehr der Tierlein schwanger wär, oder jugendhalber nit
hinkommen möchte, dieselben sollen der Zeit von jedermann ain frey
sicheres Geleit haben 14 Tage lang; aber die so ziehen mögen, sollen in 14
Tagen wandern.

_Vide_ Hormayr’s _Taschenbuch für die vaterländische Geschichte_. Berlin,
1845, pp. 239-40.

Admonition, denunciation, and citation of the inger by the priest Bernhard
Schmid in the name and by the authority of the Bishop of Lausanne in 1478.

Du vnvernünfftige/ vnvollkommne Creatur/ mit nammen 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 auff dem Erdtrich
ein mercklichen abbruch zeitlicher nahrung der Menschen vnd vnvernüfftigen
thiere. Vnd von des nun/ sömlicher und dergleichen/ durch euch vnd euweren
anhang nit mehr beshäch/ so hat mir mein gnädiger 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
Erlösers/ vnsers behalters Jesu Christi/ vnd bey krafft vnd gehorsamkeit
der heiligen Kirchen gebieten vnd ermannen ich euch in 6. nächsten tagen
zeweichen/ all vnd jegliche besonders/ auss allen Matten/ Ackeren/ Gärten/
Feldern/ Weiden/ Bäumen/ Krüteren/ vnd von allen örteren/ an denen
wachsend vnd entspringend nahrungen der Menschen vnd der Thieren/vndan
dieort vnd stätteuch fügend/ dass ihr mit ewerem anhang nimmer kein
schaden vollbringen mögen an den früchten vnd nahrungen der Menschen vnd
Thieren/ heimlich noch offentlich. Were aber sach/ dass ihr dieser
ermannungen vnd gebott nit nachgiengend/ oder nachfolgeten/ vnd meinten
vrsach haben/ das nit zeerfüllen/ 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 Fürsprechen antwort
zu geben/ vor meinem gnädigen Herren von Losann/ oder seinem Vicario vnd
statthaltern/ vnd wird drauff mein gnädiger Herr von Losann oder sein
statthalter fürer/ nach ordnungen des rechten/ wider euch/ mit verflüchen
vnd beschweerungen/ handeln/ alss sich dann in solchem gebürt/ nach form
vnd gestalt des rechten. Lieben Kind/ ich begären von ewerem jeglichen zu
bätten mit andacht auff ewerem knyen 3 Paternoster vnd Ave Maria, der
hochen heiligen Dreyfaltigkeit zu lob vnd ehr anzerüffen vnd zebitten ihr
gnad vnd hilff 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.

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 Kurfürst.--Lieber
Getsener, welchergestalt und aus was Ursachen und christlichem Eifer, der
würdige, Unser lieber andächtiger Hr. Daniel Greysser, Pfarrherr allhier
in seiner nächst getanen Predigt, über die Sperlinge etwas heftig bewegt
gewesen und dieselbe wegen ihres unaufhörlichen verdriesslichen grossen
Geschreis und ärgerlichen Unkeuschheit, so sie unter der Predigt, zu
Verhinterung Gottes Worts und christlicher Andact, zu tun und behegen
pflegen, in den Bann getan, und männiglich 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 Zuhörer insgemein getan, ohne das
allbereit auf Wege gedacht haben; sintemal Wir diesen Bericht erlangt,
dass du dem kleinen Gevögel vor andern 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 möge nach weiland des Herrn Martini seligen
Urtheil--ist demnach unser gnädiges Begehren--zu eröffnen, wie und
welchergestalt auch durch was Behändigkeit und Wege, du für gut ansehest,
dass die Sperlinge eher dann, wann sie jungen, und sich durch ihre
tägliche und unaufhörliche Unkeuschheit unzählich vermehren, ohne
sonderliche Kosten aus der Kirche zum heiligen Kreuz gebracht, und solche
ärgerliche Vöglerei und hinterlicher Getzschirpe und Geschrei im Hause
Gottes, verkümmert werden möge.... Das gereicht zur Beförderung guter
Kirchenzucht und geschieht daran unsere gnädige Meinung. Datum Dresden,
den. 18. Februar 1559.--Unserm Secretario und lieben getreuen Thomas
Nebeln.

_Vide_ Hormayr’s _Taschenbuch, etc._, 1845, pp. 227-8.

Chronological List of Excommunications and Prosecutions of Animals from
the Ninth to the Nineteenth Century.[5]

Receipt dated Jan. 9, 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, passée devant Guiot de
Montfort, tabellion à Falaise, et donnée par le bourreau de cette
ville de la somme de _dix sols et dix deniers tournois_ pour sa peine
et salaire d’avoir trainé, puis pendu à la justice de Falaise une
truie de l’age de 3 ans ou environ, qui avoit mangé le visage de
l’enfant de Jonnet le Maux, qui était 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 donné á 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 II. p.
72. Also _Statistique de Falaise_, 1827. Tome I. p. 63.

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
scel des obligacions de la vicomté de Mortaing, salut, Sachent tous
que par devant Bynet de l’Espiney, clerc tabellion juré ou siege dudit
lieu de Mortaing, fut present mestre Jehan Micton, pendart,[9] en la
viconté 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 sa
paine et salaire d’estre venue d’Avrenches jusques à Mortaing, pour
faire acomplir et pendre à la justice dudit lieu de Mortaing, un porc,
lequel avait tué et meurdis un enfant en la paroisse de Roumaygne, en
ladite viconté de Mortaing. Pour lequel fait ycelui porc fut condanney
à estre trayné et pendu, par Jehan Pettit, lieutenant du bailli de _Co
... rin_, es assises dudit lieu de Mortaing, de laquelle somme dessus
dicte le dit pendart se tint pour bien paié, et en quita le roy nostre
sire, ledit viconte et tous aultres. En tesmoing de ce, nous avons
sellé ces lettres dudit scel, sauf tout autre droit. C’en fut fait
l’an de grace mil trois cens quatre-vings et quatorze, le XXIIII{e}
jour de septembre. Signé J. LOURS. (Countersigned) BINET.

[Extract from the manuscripts of the _Bibliothèque du Roi_. _Vide_
Mémoires, _ibid._ pp. 439-40.]

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 Baudemont, lieutenant à
Meullant, de noble homme Mons. Jehan, seigneur de Maintenon, chevalier
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 devoré un petit enffant, a convenu faire
necessairement les frais, commissions et dépens ci-après déclarés,
c’est à savoir: Pour dépense faite pour elle dedans le geole, six sols
parisis.

Item, au maître des hautes-oeuvres, qui vint de Paris à Meullant faire
ladite exécution 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 à la justice, six sols parisis.

Item, pour cordes à la lier et hâler, 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 être vray par
ces présentes scellées de notre scel, et à greigneur confirmation et
approbation de ce y avons fait mettre le scel de la châtellenie dudit
lieu de Meullant, le XV{e} de mars l’an 1403. Signé de Baudemont, avec
paraffe, et au dessous est le sceau de la châtellenie de Meullant.

[Extract from the manuscripts of M. Hérisson, judge of the civil court of
Chartres, communicated by M. Lejeune to the _Mémoires de la Société Royale
des Antiquaires de France_. Tome viii, pp. 433-4.]

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 juré pour le roy nostre sire en la
viconté du Pont de Larche, fut présent 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 tournois qui deus lui estoient, c’est
assavoir 9 sous six deniers tournois pour avoir trouvé (livré) le pain
du roi aux prisonniers debtenus, en cas de crime, es dites prisons.
(Here the names of these prisoners are given.) _Item_ à ung porc
admené es dictes prisons, le 21{e} jour de juing 1408 inclus, jusques
au 17{e} jour de juillet après en suivant exclut que icellui porc fu
pendu par les gares à un des posts de la justice du Vaudereuil, à quoy
il avoit esté condempné pour ledit cas par monsieur le bailly de Rouen
et les conseuls, es assises du Pont de Larche, par lui tenues le 13{e}
jour dudict mois de juillet, pource que icellui porc avoit muldry et
tué ung pettit enfant, auquel temps il a xxiiii jours, valent audit
pris de 2 deniers tournois par jour, 4 sols 2 deniers, et pour avoir
trouvé et baillé la corde qu’il esconvint à lier icelui porc qu’il
reschapast de ladite prison où il avait esté mis, x deniers tournois.
Du 16 Octobre 1408.

[Derived from manuscripts of the _Bibliothèque du Roi_. _Vide_ Mémoires,
cit., pp. 428 and 440-1.]

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, duc de Bourgoingue, au bailli de noz
terres au conté de Bourgoingue, salut.

Oye la supplication de frère Humbert de Poutiers, prieur de la
prieurté de la ville de Saint-Marcel-lez-Jussey, contenant que comme
le V{e} jour de ce présent 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
l’un d’iceulx pors, trois truyes estans entre lesdits pors ayent couru
sus audit Perrenot, l’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 père dudit Perrenot a esté trouvé blessier à mort
par lesdites truyes, et si comme icelle Perrenot la confessè en la
présence de son dit père e dudit Jehan Benoit, et assez tost après 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 porcs pour en faire raison et justice en la
manière qu’il appartient, et encore les détient 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 blessié. Et ledit prieur nous
ait supplié que il nous plaise consentir que en faisant justice de
trois ou quatres desdits porcs le demeurant soit delivré. Nous
inclinans à sa requeste, avons de gràce especiale ouctroyé et
consenty, et par ces présentes ouctroyons et consentons que en faisant
justice et execution desdites trois truyes et de l’ung des pourceaulx
dudit prieur, que le demeurant desdits pourceaulx soit mis à delivre,
nonobstant qu’ils aient esté à la mort dudit pourchier. Si vous
mandons que de notre presente grâce vous faictes et laissiez joyr et
user ledit prieur et autres qu’il appartiendra, sans les empescher au
grâce.

Donné à Montbar, le XII{e} jour de septembre de l’an de grâce mil CCC
LXX IX. Ainsi signé. Par monseigneur le duc: _J. Potier_.

[Published by M. Garnier in the _Revue des Sociétés Savantes_, Dec. 1866,
pp. 476 _sqq._, from the archives of Côte-d’Or and reprinted by D’Addosio
in _Bestie Delinquenti_, pp. 277-8.]

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, 1606.

Entre le procureur de messieurs[10] demandeur et accusateur au
principal et requérant le proffit et adjudication de troys deffaulx et
du quart d’abondant, d’une part, et Guillaume Guyard, accusé,
deffendeur et défaillant, d’autre part.

Veu le procès criminel, charges et informations, décret de prise de
corps, adjournement à troys briefs jours, les dicts trois deffaulx, le
dict quart d’habondant, le recollement des dicts témoings et
_recognaissance faicte par les dicts témoings 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 esté bien donnés pris et obtenus contre ledict Guyard accusé,
attainct et convaincu .........

Pour réparation et punition duquel crime condempnons ledict Guyard
estre pendu et estranglé à une potence qui, pour cest effet, sera
dressée aux lices du Marché aux Chevaux de ceste ville de Chartres, au
lieu et endroict où les dict sieurs ont tout droit de justice. Et
auparavant ladicte exécution de mort, que ladicte chienne sera
assommée par l’exécuteur de la haute justice audict lieu, et seront
les corps morts, tant dudict Guyard que de la dicte chienne brûlés et
mis en cendres, si le dict Guyard peut estre pris et apprehendé en sa
personne, sy non pour le regard du dict Guyard, sera la sentence
exécuté par effigie en un tableau qui sera mis et attaché à ladicte
potence, et déclarons tous et chascuns ses biens acquis et confisqués
à qui il appartiendra, sur cieux préalablement pris la somme de cent
cinquante livres d’amende que nous avons adjugées auxdicts sieurs, sur
laquelle somme seront pris les fraicts de justice. Prononcé et exécuté
par effigie, pour le regard du dict Guyard les jour et an cy dessus.
Signé _Guyot_.

[A true copy of the original extract extant in the office of M. Hérisson,
judge of the civil court of Chartres, made by M. Lejeune and communicated
to the Société Royale des Antiquaires de France. _Vide_ Mémoires of this
Society, cit., pp. 436-7.]

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, près des foussés du Chastelet de dit
Savigny, par noble homme Nicolas Quarroillon, ecuier, juge dudit lieu
de Savigny, et ce le 10{e} jour du moys de janvier 1457, présens
maistre Philebert Quarret, Nicolas Grant-Guillaume, Pierre Bome,
Pierre Chailloux, Germain des Muliers, André Gaudriot, Jehan Bricard,
Guillaume Gabrin, Philebert Hogier, et plusieurs autres tesmoins à ce
appellés et requis, l’an et jour dessus dit.

Huguemin Martin, procureur de noble damoiselle Katherine de Barnault,
dame dudit Savigny, demandeur à l’encontre de Jehan Bailly, alias
Valot dudit Savigny, et promoteur des causes d’office dudit lieu de
Savigny, demandeur à l’encontre de Jehan Bailly, alias Valot dudit
Savigny _deffendeur_, à l’encontre duquel par la voix et organ de
honorable homme et saige M{r}. Benoit Milot d’Ostun, licencié en loys
et bachelier en décret, conseïllier de monseigneur le duc de
Bourgoingne, a été dit et proposé que le mardi avant Noel dernier
passé, _une truye_, et six coichons ses suignens, que sont
présentement prisonniers de ladite dame, comme ce qu’ils été prins en
flagrant délit, ont commis et perpetré 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 défendeur
répondit es chouses dessus dites, desquelles apparaissoit à
souffisance, et lequel par nous a esté sommé et requis ce il vouloit
avoher ladite truhie et ses suignens, sur le cas avant dit, et sur
ledit cas luy a esté faicte sommacion par nous juge avant dit, pour la
première, deuxiéme et tierce fois, que s’il vouloit rien dire pourquoi
justice ne s’en deust faire l’on estoit tout prest de les oïr en tout
ce qu’il vouldrait dire touchant la pugnycion et exécution 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 esté procédé en la manière qui s’ensuit; c’est assavoir que pour
la partie dudit demandeur, avons esté requis instamment de dire droit
en ceste cause, en la présence dudit défendeur présent et non
contredisant, pourquoy nous juge, avant dit, savoir faisons à tous que
nous avons procédé et donné nostre sentence deffinitive en la manière
que s’ensuit; c’est assavoir que veu le cas lequel est tel comme a
esté proposé pour la partie dudit demandeur, et duquel appert à
souffisance tant par tesmoing que autrement dehuëment hue. _Aussi
conseil avec saiges et practiciens_, et aussi considéré en ce cas
l’usance et coustume du païs de Bourgoingne, aïant Dieu devant nos
yeulx, nous disons et pronunçons par notre dite sentence, déclairons
la tryue de Jehan Martin, de Savigny, estre confisquée à la justice de
Madame de Savigny, pour estre mise à justice et au dernier supplice,
et estre pendus par les pieds derriers à ung arbre esproné en la
justice de Madame de Savigny, considéré que la justice de madite dame
n’est mie présentement elevée, et icelle truye prendre mort audit
arbre esproné, et ansi le disons et prononçons par notre dicte
sentence et à droit et au regard des coichons de ladite truye pour ce
qui n’appert aucunement que iceuls coichons ayent mangiés dudit Jehan
Martin, combien que aient estés trovés ensanglantés, l’on remet _la
cause d’iceulx coichons_ aux tres jours, et avec ce l’on est content
de les rendre et bailler audit _Jehan Bailly_, en baillant caucion de
les rendre s’il est trové qu’il aient mangiers dudit Jehan Martin, en
païant les poutures, et fait l’on savoir à tous, sous peine de
l’amende et de 100 sols tournois qu’ils le dieut et déclairent dedans
les autres jours, de laquelle nostre dicte sentence, après la
prononciation d’icelle, ledit procureur 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 demandé
acte de nostre dicte court à lui estre faicte, laquelle luy avons
ouctroyé, et avec ce instrument, je, Huguenin de Montgachot, clerc,
notaire publicque de la court de monseigneur le duc de Bourguoigne, en
la présence des tesmoings ci-dessus nommés, je lui ai ouctroyé, ce
fait l’an et jour dessus dit et présens les dessus tesmoings. _Ita
est._ Ainsi signe, Mongachot, avec paraphe, et de suite est écrit:

_Item_, en oultre, nous juge dessus nommé, savoir faisons que
incontinent après nostre dicte sentence ainsi donnée par nous les an
et jour, et en la présence des temoings que dessus, avons sommé et
requis ledit Jehan Bailli, se il vouloit avoher lesdits coichons, et
se il vouloit bailler caucion pour avoir recréance d’iceulx; lequel a
dit et répondu qui ne les avohait aucunement, et qui ni demandait rien
en iceulx coichons; et qui s’en rapportoit à ce que en ferions;
pourquoy sont demeurez à la dicte justice et seignorie dudit Savigny,
de laquelle chouse ledit Huguenin Martin, procureur et promoteur des
causes d’offices, nous en a demandé acte de court, lequel lui nous
avons ouctroyé et ouctroyons par ces présentes, et avec ce ledict
procureur de ladicte dame, à moy notaire subescript, m’en demanda
instrument, lequel je luy ait ouctroyé en la presénce desdits
tesmoings cy-dessus nommés.

_Item_, en après, nous Nicolas Quaroillon, juge avant dit, savoir
faisons à tous que incontinent après les chouses dessus dictes, avons
faict delivrer réalement et de fait ladicte truye à maistre Etienne
Poinceau, maistre de la haute justice, demeurant à Châlons-sur-Saône,
pour icelle mettre à exécucion selon la forme et teneur de nostre
dicte sentence, laquelle délivrance d’icelle trühie faicte par nous
comme dit est, incontinent ledit maistre Estienne a mené sur une
chairette ladicte truye à ung chaigne esproné, estant en la justice de
ladite dame Savigny, et en icelluy chaigne esproné, icelluy maistre
Estienne a pendu ladite truye par les piez derriers; en mectant à
exécution deue nostre dicte sentence, selon la forme et teneur de
laquelle délivrance et exécution d’icelle truye, ledit Huguenin
Martin, procureur de ladicte dame de Savigny nous a demandé acte de
nostre dicte court à lui estre faicte et donnée, laquelle luy avons
ouctroyée, et avec ce à moi, notaire subscript, m’a demandé instrument
ledit procureur à luy estre donnée, je luy ai ouctroyé en la présence
des temoings cy-dessus nommez, ce fait les au et jour dessus ditz.
Ainsi signé 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 _procès
verbal_.

Jours tenus au lieu de Savigny, sur la chaussée de l’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 après la feste de la Purification Notre
Dame Vierge, présens Guillaume Martin, Guiot de Layer, Jehan Martin,
Pierre Tiroux et Jehan Bailly, tesmoings, etc.

Veue les sommacions et réquisitions faicte par nous juge de noble
damoiselle Katherine de Barnault, dame de Savigny, à Jehan Bailly
alias Valot de advohé on repudié les coichons de la truye nouvellement
mise à exécution par justice à raison du murtre commis et perpetré par
la dicte truye en la personne de Jehan Martin, lequel Jehan Bailli a
esté remis de advoher lesdites coichons et de baillier caucion
d’iceulx coichons rendre, s’il estoit trouvé qu’ils feussions
culpables du délict avant dict 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,
déclairons et pronuncons par nostre sentence deffinitive, et à droit:
iceulx coichons compéter et appartenir comme biens vaccans à ladite
dame de Savigny et les luy adjugeons comme raison, l’usence et la
coustume de païs le vueilt. De laquelle nostre dicte sentence, ledit
procureur de ladite dame en a demandé acte, de nostre dicte court a
luy estre donnée et ouctroyée. Avec ce en a demandé instrument à moy
notaire subscript, lequel il luy a ouctroyé en la présence des dessus
nommés. Signé Mongachot avec paraphe.

[Extract from the archives of Monjeu and Dependencies, belonging to M.
Lepelletier de Saint-Fargeau. (Savigny-sur-Etang, boëte 25{e}, liasse 1,
2, & 3, etc.) _Vide_ Mémoires, cit., pp. 441-5.]

Sentence pronounced April 18, 1499, in a criminal prosecution instituted
before the Bailiff of the Abbey of Josaphat, in the Commune of Sèves, 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 procès criminel faict par-devant nous à la requeste du
procureur de messieurs le religieux, abbé et convent de Iosaphat, à
l’encontre de Iehan Delalande et sa femme, prisonniers èsprisons de
céans, pour raison de la mort advenue à la personne d’une jeune
enfant, nommée Gilon, âgée de un an et demi ou environ; laquelle
enfant avoit eté baillée à nourrice par sa mère: ledict meurtre advenu
et commis par un pourceau de l’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 à la requête dudict procureur; le tout veu et en
sur ce conseil aulx saiges, _ledit Jehan Delalande et sa femme, avons
condampnés et condampnons en l’amende envers de justice de dix-huit
franz_, qu’il a convenus pour ce faire, tel que de raison, et à tenir
prison jusqu’à plein payement et satisfaction d’iceulx à tout le moins
qu’ils avoient baillé bonne et seure caution d’iceulx.

_Et en tant que touche le dict pourceau_, pour les causes contenues
et établies audict procès, _nous les avons condampné et condampnons à
être pendu et executé par justice_, en la jurisdiction des mes dicts
seigneurs, par notre sentence définitive, _et à droit_.

Donnè sous la contre scel aux causes dudict baillage, les an et jour
que susdicts. _Signé_ 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_ Mémoires, cit., pp. 434-5.]

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 présentes lettres verront ou orront, Jehan
Lavoisier licentie ez loix, et grand mayeur de l’église et monastère
de monsieur St. Martin de Laon, ordre de Prémontré, et les echevins de
ce même lieu; comme il nous eust été apporté et affirmé par le
procureur-fiscal ou syndic des religieux, abbé et convent de
Saint-Martin de Laon, qu’en la cense de Clermont-lez-Montcornet,
appartenant en toute justice haulte, moyenne et basse auxdits
relligieux, ung jeune pourceaulx eust éstranglé et _défacié_ 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
requérant à cette cause, que sur ledit cas voulussions procéder, comme
justice at raison le désiroit et requerroit; et que depuis, afin de
savoir et cognoitre la vérité dudit cas, eussion ouï et examiné par
serment, Gillon, femme dudit Lenfant, Jehan Benjamin, et Jehan
Daudancourt, censiers de ladite cense, lesquels nous eussent dit et
affirmé par leur serment et conscience, que le lendemain de Pasques
dernier passé ledict Lenfant estant en la garde de ses bestes, ladicte
Gillon sa femme desjettoit de ladicte cense, pour aller au village de
Dizy ..., ayant délaissé en sa maison ledict petit enfant.... Elle le
renchargea à une sienne fille, âgée de neuf ans ... pendant et durant
lequel temps ladite fille s’en alla jouer autour de ladite cense, et
laissé ledit enfant couché en son berceau; et ledit temps durant,
ledit pourceaulz entra dedans ladite maison ... et défigura et mangea
le visage et gorge dudit enfant.... Tôt après ledit enfant, au moyen
des morsures et dévisagement que lui fit ledit pourceaulz, de ce
siecle trépassa: savoir faisons.... Nous, en detestation et horreur
dudit cas, et afin d’exemplaire et gardé justice, avons dit, jugé,
sentencié, prenoncé et appointé, que ledit pourceaulz _estant detenu
prisonnier_ et enferme en ladite abbaye, sera par le maistre des
hautes-oeuvres, pendu et estranglé, en une fourche de bois, auprès et
joignant des fourchee patibulaires et haultes justices desdits
relligieux, estant auprès de leur cense d’Avin.... En temoing de ce
nous avons scellé ces presentes de notre scel.

Ce fut fait le quatorzième jour de juing, l’an 1494, et scellé en cire
rouge; et sur le dos est écrit:

Sentence pour ung pourceaulz executé par justice, admené en la cense
de Clermont, et étranglé en une fourche les gibez d’Avin.

[M. Boileau de Maulaville, in _L’Annuaire de l’Aisne 1812_, p. 88. _Vide_
Mémoires, cit., pp. 428 and 446-7.]

Sentence pronounced, March 27, 1567, by the royal notary and proctor of
the bailiwick and 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.

A tous ceulx qui ces présentes lettres verront, Jehan Lobry, notaire
royal et procureur au bailliage et siège présidial 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 procès extraordinairement fait à la requête du Procureur de la
seigneurie du dict Saint-Nicolas, pour raison de la mort advenue à une
jeune fille âgée de quatre mois ou environ, enfant de Lyénor Darmeige
et Magdeleine Mahieu sa femme, demeurant au dict Saint-Nicolas,
trouvée avoir esté mangée et devorée en la tete, main senestre et au
dessus de la mamelle dextre par une truye ayant le museau noire,
appartenant à Louis Mahieu, frère de la dite femme et son proche
voisin;

Le procès verbal de la visitation du dict enfant en la presence de son
parrain et de sa marraine qui l’ont recogneu;

Les informations faites pour raison du dit cas, interrogatoires des
dits Louis Mahieu et sa femme, avec la visitation faicte de la dicte
truye à l’instant du dit cas advenu et tout consideré en conseil, il a
été conclu et advisé par justice que POUR LA CRUAUTÉ ET FEROCITÉ
COMMISE PAR LA DITE TRUYE, elle sera exterminée par mort et pour ce
faire sera pendue par l’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 à
tous habitans et sujet des terres et seigneurie du dit Saint-Nicolas
de ne plus laisser échapper telle et semblables bestes sans bonne et
seure garde, sous peine d’amende arbitraire et de pugnition corporelle
s’ily échoit, sauf et sans préjudice à faire droit sur les conclusions
prinses par le dit Procureur à l’encontre des dits Mahieu et sa femme
ainsi que de raison, au témoin de quoy nous avon scellé les présentes
du scel de la dicte justice.

Ce fu faist le jeudi 27{e} jour de Mars 1557 et exécuté ledit jour par
l’executeur de la haulte justice du dit Senlis.

[Dom. Grenier, _Manuscrits de la Bibliothèque Nationale de Paris_, tome
xx. p. 87. Quoted by D’Addosio, who, however, confounds the prosecution of
1567 with that of 1499.]

Sentence of death upon a bull, May 16, 1499, by the bailiff of the Abbey
of Beaupré, 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 l’église & abbaye nôtre Dame de Beauprés de
l’ordre de Cisteaux, pour venerables & discretes personnes & mes
tres-honorez seigneurs, messeigneurs les religieux abbé & convent de
ladite abbaye, salut. Comme à la requeste du procureur de mesdits
seigneurs, & par leur justice temporelle qu’ils ont en leur terre &
seigneurie du Caurroy eût été nagaires prins & mis en la main d’icelle
leur justice ung thorreau de poil rouge, appartenant à Jean Boullet
censier & fermier de mesdits seigneurs, demeurant en leur maison &
cense dudit Caurroy, lequel thorreau étant aux champs & sur le
territoiiere d’icelle église, auroit par furiosité occis & mis à mort
un joine fils, nommé Lucas Dupont, de l’âge de quatorze à quinze ans,
ou environ, serviteur dudit censier, lequel il avoit mis à la garde de
ces bestes à corne, entre lesquelles estoit ledit thorreau. Duquel
thorreau ledit procureur de mesdits seigneurs requeroit la justice
estre faite, & qu’il fut executé jusqu’à mort inclusivement par la
justice de mesdits seigneurs pour occasion de icelui crimme de omicide
& de la detestation d’iceluy. Sur quoy enqueste & information eussent
été 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 & jugié, que pour
raison de l’omicide, dont dessus est touchié, fait par ledit thorreau
en la personne d’iceluy Lucas, & pour la detestation du crime d’iceluy
homicide, ledit thorreau nommé confisqué à mesdits seigneurs sera
executé jusques à mort inclusivement par leurdite justice, & pendu à
une fourche ou potence es mettes de leurdite terre & seigneurie dudit
Caurroy, aupres du lieu ou solloit estre assise la justice. Et ad ce
le avons condamné & condamnons. En tesmoing de ce avons mis nostre
scel à ces lettres qui furent faites & pronunchiés audit lieu du
Caurroy en la presence de Guillaume Gave du Mottin, Jehan Custien
l’aisné, Jehan Henry, Jehan Boullet, hommes & subjets de mesdits
seigneurs, Jehan Charles, & Clement le Carpentier, & plusieurs autres
les seizieme jour de May l’an mil quatre cens quatre-vingt-dix-neuf.
Ainsi signé, Ileugles, ad ce commis.

[The original records of this trial for homicide are in the archives of
the Abbey of Beaupré. Vide _Voyage Littéraire de deux Religieux
Benedictins de la Congregation de St. Maur_. Seconde Partie, pp. 166-7.
Paris, 1717. The Benedictins were Dom. Edmond Martene and Dom. Ursin
Durand.]

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 desolée;
Venez, pauvres enfants qu’on veut rendre orphelins;
Venez faire parler vos esprits enfantins.
Oui, messieurs, vous voyez ici notre misère;
Nous sommes orphelins, rendez-nous notre père,
Notre père par qui nous fûmes engendrés,
Notre père qui nous....

DAUDIN.

Tirez, tirez, tirez.

L’INTIME.

Notre père, messieurs....

DAUDIN.

Tirez donc, Quels vacarmes!
Ils ont pissé partout.

L’INTIME.

Monsieur, voyez nos larmes.

DAUDIN.

Ouf! je me sens dejà pris de compassion.
Ce que c’est qu’ à propos toucher la passion!
Je suis bien empêché. La vérité me presse;
Le crime est avéré, lui-même il le confesse.
Mais, s’il est condamné, l’embarras est égal;
Voilà bien des enfants réduits à l’hôpital.”
_Les Plaideurs_, Act III, sc. 3.

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 1621 den 20 July ist Hanss Fritzchen weib Catharina alhier zu
Machern wohnende von Ihrer eigen Mietkuhe,[11] da sie gleich
hochleibss schwanger gang, auff Ihren Eigenen hofe zu Tode gestossen
worden. Vber welch vnerhörten Fall der Juncker Friederich von
Lindenau, als Erbsass diesess ortes, in der Jurisstischen Facultet zu
Leipzig sich darüber dess Rechtes belernet: Welche am Ende dess
Vrtelss diese wort also aussgesprochen: So wird die Kuhe, als
abschewlich thier, an Einen abgelegenen öden ort billig geführet,
daselbst Erschlagen oder Erschossen, vnnd vnabgedecht begraben.
Christoph Hain domalss zu Selstad wohnend hat sie hinder der
Schäfferey 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 für Kunde der deutschen Vorzeit_. No. 4, April 1880, col. 102.]

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INDEX

Abbott, Rev. Lyman, regards bad impulses as suggestions of evil spirits,
76

Achan, his severe punishment by Joshua, 180

Addosio, Carlo d’, his _Bestie Delinquenti_ cited, 1, 4;
his list of animal prosecutions, 135;
on pigs as a public nuisance in Italy, 159

Æschines, cited, 172

Æschylus, 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 Thierprocesse_ 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 Protestantism 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;
personification of, 10, 11;
their competency as witnesses, 11;
origin of their judicial prosecution, 12;
as born criminals, 14;
tendency of modern penology to efface the distinction between 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 preventive prosecution of, 33;
their consciousness of right and wrong, 35, 247;
false conception of the purpose of their prosecution, 40;
can be anathematized, but not excommunicated, 51;
items of expense in prosecuting, 49, 138, 140-143;
not mere machines, 66;
in folk-lore, 84;
worship of, 85;
imperfect lists of prosecuted, 135-137;
burned and buried alive, 138;
put to the rack to extort confession, 139;
confiscation of valuable, 164, 189;
unclean 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 retributive character, 168;
its cruel doctrine of accessories, 178;
on tainted swords, 187

Angrô-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, modern and mediæval use of vermifugal, 53

Augustine, St., cited, 94, 106

_Aura corrumpens_ in houses and stalls, 8

Aurelian, Father, on diabolical possession, 75

Avesta, on exorcisms, 36;
on good and evil creations, 57;
on mad dogs, 176

Ayrault, Pierre, his protest against animal prosecutions, 109

Azpilcueta, Martin. _See_ Dr. Navarre.

Baal-zebub (Beelzebub), fly-god, 84;
his preference for black beasts, 165

Bailly, Gaspard, his _Traité des Monitoires_ cited, 52, 92-108

“Basilisk-egg,” 10

Basilius, St., his insect-expelling girdle, 136

Basilovitch, Ivan, his conception of retributive justice, 183

Bassos, Kassianos, prefers rat-bane to adjuration, 132

Beasts, sweet and stenchy, 55

Bees, tainted honey of homicidal, 9

Bell, banished to Siberia by the Russian Government, 175

Benedikt Prof., on the brain-formation of criminals, 212

Bernard, Claude, his idea of the physiologist, 245

Bernard, St., kills flies by cursing them, 28

Bernardes, Manoel, his _Nova Floresta_, 124

Berriat-Saint-Prix, his valuable 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

Boër, Nicolaus, on cohabitation with a Jewess as sodomy, 153

Bogos, homicidal beasts executed by the, 155

Bonnivard, François, presides as judge in a trial of vermin, 38

Borromeo, Carlo, his cruelty in punishing heresy, 208

Bougeant, Père, his _Amusement 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 sodomy, 151

Cattle, bewitched by bad air, 8

Cervantes, 167

Character, factors in the formation of, 219;
responsibility for, 239, 243

Charcot, Dr., on the curative power of faith, 80, 225

Chassenée, Bartholomew, his _Consilia_, 2, 21-23;
distinguished as a defender of prosecuted rats, 18;
equal rights of rats and Waldenses recognized by, 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 incarnations of Satan
and as agents of God, 3-6;
capital punishment never inflicted by, 31;
its power to stay the ravages of vermin unquestioned, 50

Cicero, cited, 22, 101;
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 executed, 110, 198, 199;
cannot inherit, 110

“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 imputed, 177-185;
ancient and mediæval 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 hypnotism, 223-225;
due to many uncontrollable conditions, 230;
motives underlying animal, 235;
animals conscious of, 247;
contagiousness of, 252, 256

Crollanza, his record of the prosecution of caterpillars, 122

Crosiers, vermifugal efficacy of, 30

Cybele, invoked against vermin, 133

Damhouder, Jacobus, picture of animal crimes in his _Rerum Criminalium
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;
incarnate in every babe, 70;
maladies produced by, 72;
modern inventions the devices of, 229

Didymos, his “Geoponics,” 133

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

Döpler, Jacob, on sodomy, 152;
on _Lex talionis_, 182;
on vampires, 197

Dove, symbol of the Holy Ghost, 57

Draco (Drakôn), his law punishing weapons, 172

Dreyfus, his prosecution instigated 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, pronounced against insects by the Church, 3;
sold at Rome, 30;
properly speaking, animals not subject to, 51, 100;
comical survivals of, 128.
_See_ Anathemas

Exorcisms, their efficiency recognized by Heidelberg professors, 27;
applied as plasters, 72;
superseded by conjurations among Protestants, 125;
by Mohammedans, 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

Frederic the Great, his penal reforms, 207

Fricker, Thüring, doctor of laws, chancellor and prosecutor 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

Görres, recent case of conjuration 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 efficiency of bans not supernatural, 128

Gross, his mis-statement concerning the cock of Bâle, 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 responsibility 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 excommunication, 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, 113-115;
not in Noah’s Ark, 120

Insanity, degrees of, 200-203;
in Italian and German law, 204-206;
difficulty of defining, 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

Jeanneret, Marie, her toxicomania, 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

Jörgensen, 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 punishment 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 criminality, 223

Leipsic, decision of the Law Faculty concerning a homicidal 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 applications 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 exorcisms and aspergeoires, 3, 64;
dispersed and destroyed by excommunication, 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;
opposed 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 criminality 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 imputation, 180

Majolus, cited, 86

Maledictions. _See_ Anathemas

Malleolus, Felix, his theory of exorcisms endorsed by Heidelberg
professors, 27;
records a prosecution of Spanish flies, 110;
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

Ménebréa, M. L., 2, 17;
his theory untenable, 40

Mephistopheles, the lord of rodents and vermin, 85

Mithridates, experiments with poisons, 244

Moles, prosecution of, 111-113

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 classical, 64;
in modern life, 228

Naquet, regards criminals as no more culpable than poisons, 212

Narrenkötterlein, dog sentenced to a, 175

Nature, imperfection of, 61

Navarre, Dr., regards fish as cacodemons, 90

Nebuchadnezzar, a satanic metamorphosis, 63

Nikôn, his statue punished for manslaughter committed 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

Osenbrüggen, Eduard, his theory of the personification of animals, 10, 17

Ovid, quoted, 101, 103

Oxen, executed, 168;
punished although innocent, 183

Pachacutez, barbarous code of this Peruvian Justinian, 179

Papal See, trial and punishment 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;
mediæval and modern, 15, 200, 206-210;
in Italy and Germany, 203-206;
brutality of mediæval, 206-209;
moral and penal responsibility, 210;
still inchoate, 15, 219-223, 257;
deterrent aims of, 211, 248, 249;
law of the survival of the fittest in, 221-223;
punitive and preventive, 237;
its relation to psycho-pathology, 248

Pereira Gomez, forerunner of Descartes, 66

Perjury, retaliative punishment 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 punishments, 180;
opposed to reform, 205

Prytaneion (Prytaneum), condemned inanimate objects for crime, 172;
but not corpses, 199

Pufendorf, Samuel, on contagiousness in crime, 256

Puritans, their penal enactments, 209

Pythagoras, his doctrine of transmigration, 87

Queen Reason, her discourse on animals in reply to King Mode, 56-58

Racine, his caricature of beast trials in _Les Plaideurs_, 166, 361

Ram, banished to Siberia, 175

Randolph, his allusion to rhyming rats, 130

Rats, prosecution of, 18-21, 136;
friendly letters of advice to, 129;
Irish custom of rhyming, 130

Raven, an imp of Satan, 57

Renaud d’Alleins, on equal rights of Waldenses and rats, 20

Responsibility, moral and penal, 210

Reusch, Prof. Dr. Fr. Heinrich, denounces bishops as promoters of
superstition, 14

Ro-ro-ro-ro, an anti-semitic devil cast out in 1842, 73

Rosarius, Hierolymus, describes 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 sovereignty, 60, 70;
the doctrine of his final redemption, 68

Schilling, on the prosecution of inger, 113, 120

Schläger, 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 responsibility 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, 157

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, 140-145, 149, 153-157, 161, 169;
as stenchy beasts peculiarly 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-citizen 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 à Becket, his bones burned by Henry VIII., 198

Thomas Aquinas, regarded animals only as diabolical incarnations, 53-55,
88, 101, 103

Thurneysser, his bottled scorpions and elk feared as demons, 90

Tithes, importance of the prompt payment of, 37, 94, 107

Tobler, G., on animal prosecutions in Switzerland, 1, 170

Treason, barbarously punished 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 Wemding 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

Türler, records the rejection of the Mosaic law by the ecclesiastical
court of Berne, 170

Vampires, superstitions concerning, 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

_Werther_, Goethe’s, sentimentalism and suicidism produced by, 253

Winterstetter, Georg, his rescript concerning gadflies, 125

Witches in Judaic and mediæval 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

Zoöpsychology, in its relation to anthropopyschology and criminology, 237

Zupetta, on partial vitiation of mind, 201

_Richard Clay & Sons, Limited, London and Bungay._

FOOTNOTES:

[1] The name is also spelled Chassanée 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.

[2] “Item: a été délibéré que la ville se joindra aux paroisses de cette
province qui voudront obtenir de Rome une excommunication contre les
insects et que l’on contribuera aux frais au pro rata.”

[3] These animals are spoken of as _unvernünftige Thierlein genannt
Lutmäuse_. _Lut_ might be derived from the Old German _lût_ (_Laut_,
Schrei), in which case _Lutmaus_ would mean shrew-mouse; but it is more
probably from _lutum_ (loam, mould), and signifies mole or field-mouse.
Field-mice are exceedingly prolific rodents, and in modern as well as in
mediæval 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 case in
England in 1813-14, and in Germany in 1822, and again in 1856.

[4] The first part of this treatise, consisting of seventeen chapters,
discusses the different kinds of “monitoires” and their applications. Only
the second part, describing the legal procedure, is here printed.

[5] A few early instances of excommunication and malediction, our
knowledge of which is derived chiefly from hagiologies and other legendary
sources, are not included in the present list, such, for example, as the
cursing and burning of storks at Avignon by St. Agricola in 666, and the
expulsion of venomous reptiles from the island Reichenau in 728 by Saint
Perminius.

[6] This case is probably identical with and an adjournment of that of
1478.

[7] Identical with the sentences covering the period of 1500-1530.

[8] 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.

[9] In modern French _pendard_ 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.

[10] Under this term are included the dean, canons, and chapter of the
Cathedral of Chartres.

[11] _Mietkuhe_, a cow pastured or wintered for pay.

Transcriber's Notes:

Passages in italics are indicated by _italics_.

Superscripted characters are indicated by {superscript}.

*** End of this LibraryBlog Digital Book "The Criminal Prosecution and Capital Punishment of Animals" ***

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