6r Cornell University Law Library THE GIFT OF ^....M^..jj..'.y..z ^.... Cornell University Library GT6715.E8E92 1906 The criminal prosecution and capital pun 3 1924 021 236 017 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021236017 THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS 0a;ee/y.^l€>?^ .'C^.e^ 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. NEW YORK E. P. BUTTON AND COMPANY MCMVI 5 v- ^7 ^vT Printed in England CONTENTS INTRODUCTION Sources — Amira's distinction between retributive and pre- ventive processes — Addosio's incorrect designation of the latter as civil suits — Inconsistent attitude of the Church in excommunicating animals — Causal relation of crime to demoniacal possession — Squatter sovereignty of devils — Aura corrumpens — Diabolical infestation and lack of ventilation — " Bewitched kine "— Greek furies and Christian demons — Homicidal bees, laying cocks and crowing hens — Theory of the personification of animals — Beasts in Frankish, Welsh, and old German laws — Animal prosecutions and witchcraft — The Mosaic code in Christian courts — Pagan deities as demons — Born malefactors among beasts — The theory of punishment in modern criminology ... ... p. i CHAPTER I BUGS AND BEASTS BEFORE THE LAW Criminal prosecution of rats — Chassenee appointed to defend them — Report of the trial — Chassenee employed as counsel in other cases of this kind — His dissertation on the subject — Nature of his argument —Authorities and precedents — The withering of the fig-tree at Bethany justified and explained by Dr. Trench — Eels and blood- suckers in Lake Leman cursed by the Bishop of Lausanne with the approval of Heidelberg theologians — White bread turned black, and swallows, fish, and flies vi Contents destroyed by anathema — St. Pirminius expels reptiles — Vermifugal efficacy of St. Magnus' crosier — Papal execratories — Animals regarded by the law as lay persons, and not entitled to benefit of clergy — Methods of procedure — Jurisdiction of the courts — Records of judicial proceedings against insects — Important trial of weevils at St. Jean-de-Maurienne extending over more than eight months — Untenableness of Menebr&'s theory — Summary of the pleadings — Futile attempts at com- promise — Final decision doubtful — St. Eldrad and the snakes — Views of Thomas Aquinas — Distinction be- tween excommunication and anathema — " Sweet beasts and stenchy beasts '' — Animals as incarnations of devils — Their diabolical character assumed in papal formula for blessing water to kill vermin — Amusing treatise by Pfere Bougeant on this subject — All animals animated by devils, and all pagans and unbaptized persons possessed with them — Demons the real causes of diseases — Father Lohbauer's prescription in such cases — Formula of exorcism issued by Leo XIII. — Recent instances of demoniacal possession — Hoppe's psychological explana- tion of them — Charcot on faith-cures — Why not the duty of the Catholic Church to inculcate kindness to animals — Zoolatry a form of demonolatry — Gnats especially dangerous devils — Bodelschwingh's discovery of the bacillus infernalis — Gaspard Bailly's disquisition with specimens of plaints, pleas, etc. — Ayrault protests against such proceedings — Henimerlein's treatise on exorcisms — Criminal prosecution of field-mice — Vermin excom- municated 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 — Baill/s bill of expenses — An ox decapitated for its demerits — Punish- ment of buggery — Cohabitation of a Christian with a Jewess declared to be sodomy — Trial of a sow and six sucklings for murder — Bull sent to the gallows for killing a lad — A horse condemned to death for homicide Contents vii — A cock burned at the stake for the unnatural crime of laying an egg — Lapeyronie's investigation of the subject — Racine's satire on such prosecutions in Les 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 in- surrection — Pillory for dogs in Vienna — Treatment prescribed for mad dogs in the Avesta — Cruelty of laws of talion and decrees of corruption of blood — Examples in ancient and modern legislation — Cicero approves of such penalties for political offences — Survival of this conception of justice in theology — Constitutio Criminalis Carolina — Lombroso opposed to trial by jury as a relic of barbarism — Corruption of Swiss cantonal courts — Deodand in English law — Applications of it in Mary- land and in Scotland — Blackstone's theory of it untenable — Penalties inflicted for suicide — Ancient legislation on this subject — Legalization of suicide — Abolition of deodands in England p. i8 CHAPTER II MEDIEVAL AND MODERN PENOLOGY Recent change in the spirit of criminal jurisprudence — Mediaeval tribunals cut with the executioner's sword the intricate knots which the modern criminalist essays to untie — Phlebotomy a panacea in medicine and law — Restless ghosts of criminals who died unpunished — Execution of vampires and were-wolves — Case of a were- wolf who devoured little children " even on Friday " — Pope Stephen VI. brings the corpse of his predecessor to trial — Mediaeval and modern conceptions of culpa- bility — Problems of psycho-pathological jurisprudence — Degrees of mental vitiation — Italians pioneers in the scientific study of criminality — Effects of these specula- tions upon legislation — Barbarity of mediseval penal justice — Gradual abolition of judicial torture — Cruel sentence pronounced by Carlo Borromeo — " Blue Laws " viii Contents a great advance on contemporary English penal 'codes — Moral and penal responsibility — Atavism and criminality — Physical abnormities — Capacity and symmetry of the skull — Circumvolutions of the brain — Tattooing not a peculiarity of criminals, but simply an indication of low Eesthetic 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 — Ad- vanced criminalists justly dissatisfied with the penal codes of to-day — Measures proposed by Lombroso and his school — Their conclusions not sustained by facts — Crime through hypnotic suggestion — Difficulty of de- fining insanity — Coleridge's definition too inclusive — Predestination and evolution — Criminality among the lower animals — Punishment preventive or retributive — Schopenhauer's doctrine of responsibility for character — Remarkable trial of a Swiss toxicomaniac, Marie Jeanneret — " Method in Madness " not uncommon — Social safety the supreme law— Application of this principle to " Cranks " — Spirit of imitation peculiarly strong in such classes — Contagiousness of crime — Criminology now in a period of transition ... p. 193 APPENDIX A. De Actis Scindicorum Communitatis Sancti JuUiani agentium contra Animalia Bruta ad formam mus- carum volantia coloris viridis communi voce appellata Verpillions seu Amblevins p. 259 B. Traite des Monitoires avec un Plaidoyer centre les Insectes par Spectable Gaspard Bailly ... p. 287 C. Allegation, Replication, and Judgment in the process against field-mice at Stelvio in 1 519 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, com- mending the action of Parson Greysser in putting the sparrows under ban, issued at Dresden in 1559 ^.311 Contents ix F. Chronological List of Excommunications and Prose- cutions of Animals from the ninth to the nineteenth century p, 313 G. Receipt, dated January 9, 1386, in which the hangman of Falaise acknowledges to have been paid by the Viscount of Falaise ten sous and ten deniers toumois for the execution of an infanticidal sow, and also ten sous tournois for a new glove /• 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 nine- teen sous and six deniers toumois for food furnished to sundry men and to one pig kept in the said prisons on charge of crime A 34° 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 /• 342 L. Sentence pronounced by the Mayor of Loens de Chartres on the i2th of September, 1606, condemning Guillaume Guyart to be hanged and burned together with a bitch... ... ... ... ... ... ... ^.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 Contents N. Sentence pronounced, April i8, 1499, in a criminal prosecution instituted before the Bailiff of the Abbey of Josaphat, in the Commune of Sfeves, 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 i^- 352 O. Sentence pronounced, June 14, 1494, by the Grand Mayor of the church and monastery of St. Martin de Laon, condemning a pig to be hanged and strangled for infanticide committed on the fee-farm of Clermont- lez-Montcomet p. 354 P. Sentence pronounced, March 27, 1567, by the Royal Notary and Proctor of the Bailiwick 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 Beauprd, for furiously killing Lucas Dupont, a young man of fourteen or fifteen years of age /• 3S8 R. Scene from Racine's comedy Les Plaideurs, in which a dog is tried and condemned to the galleys for stealing a capon J>. 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 Mediaeval Punishment," which appeared in The Atlantic Monthly, in August and Sep- tember 1884. Since that date the author has collected a vast amount of additional material on the subject, which has also been discussed by other writers in several publications, the most noteworthy of which are Professor Karl von Amira's Thierstrafen und Thierprocesse (Innsbruck, 1891), Carlo d'Addosio's Bestie Delinquenti (Napoli, 1892), and G. Tobler's Thierprocesse in der Schweis (Bern, 1893), but in none of these works, except the first- mentioned, are there any important statements of facts or citations of cases in addition to those adduced in the essays already mentioned, for which the writer was indebted chiefly to the I The Criminal Prosecution and extensive and exceedingly valuable researches of Berriat-Saint-Prix and M. L. Menebr6a, and the Consilium Primum of Bartholomew Chas- senee, cited in the appended bibliography. Professor Von Amira is a very distinguished and remarkably keen-sighted jurisprudent and treats the matter exclusively from a jurispru- dential point of view, his main object being to discover some general principle on which to explain these strange phenomena, and thus to assign to them their proper place and true significance in the historical evolution of the idea of justice and the methods of attaining it by legal procedure. Von Amira draws a sharp line of technical distinction between Thierstrafen and Thierpro- cesse; the former were capital punishments in- flicted by secular tribunals upon pigs, cows, horses, and other domestic animals as a penalty for homicide ; the latter were judicial proceedings instituted by ecclesiastical courts against rats, mice, locusts, weevils, and other vermin in order to prevent them from devouring the crops, and to expel them from orchards, vineyards, and culti- vated fields by means of exorcism and excom- munication. Animals, which were in the service of man, could be arrested, tried, convicted and executed, like any other members of his house- hold ; it was, therefore, not necessary to summon them to appear in court at a specified time to answer for their conduct, and thus make them, Capital Punishment of Animals 3 in the strict sense of the term, a party to the prosecution, for the sheriff had already taken them in charge and consigned them to the custody of the jailer. Insects and rodents, on the other hand, which were not subject to human control and could not be seized and imprisoned by the civil authorities, demanded the interven- tion of the Church and the exercise of its super- natural functions for the purpose of compelling them to desist from their devastations and to retire from all places devoted to the production of human sustenance. The only feasible method of staying the ravages of these swarms of noxious creatures was to resort to " metaphysical aid " and to expel or exterminate them by sacerdotal conjuring and cursing. The fact that it was customary to catch several specimens of the culprits and bring them before the seat of justice, and there solemnly put them to death while the anathema was being pronounced, proves that this summary manner of dealing would have been applied to the whole of them, had it been possible to do so. Indeed, the attempt was sometimes made to get rid of them by setting a price on their heads, as was the case with the plague of locusts at Rome in 880, when a reward was offered for their extermination, but all efforts in this direction proving futile, on account of the rapidity with which they propa- gated, recourse was had to exorcisms and be- sprinklings with holy water. 4 The Criminal Prosecution and D'Addosio speaks of the actions brought against domestic animals for homicide as penal prosecutions, and those instituted against insects and vermin for injury done to the fruits of the field as civil suits (processi civili) ; but the latter designation is not correct in any proper sense of the term, since these actions were not suits to recover for damages to property, but had solely a preventive or prohibitive character. The judicial process was preliminary to the utterance of the malediction and essential to its efficacy. Before fulminating an excommunication the whole machinery of justice was put in motion in order to establish the guilt of the accused, who were then warned, admonished, and threat- ened, and, in cases of obduracy, smitten with the anathema maranatha and devoted to utter destruction. As with all bans, charms, exorcisms, incantations, and other magical hocus-pocus, the omission of any formality would vitiate the whole procedure, and, by breaking the spell, deprive the imprecation or interdiction of its occult virtue. Ecclesiastical thunder would thus be robbed of its fatal bolt and reduced to mere empty noise, the harmless explosion of a blank cartridge. The Church was not wholly consistent in its explanations of these phenomena. In general the swarms of devouring insects and other noxi- ous vermin are assumed to have been sent at the instigation of Satan (instigante sathana, per Capital Punishment of Animals 5 maleficium diabolicum), and are denounced and deprecated as snares of the devil and his satel- lites {diaboli et ministrorum insidias) ; again they are treated as creatures of God and agents of the Almighty for the punishment of sinful man ; from this latter point of view every effort to exterminate them by natural means would be regarded as a sort of sacrilege, an impious attempt to war upon the Supreme Being and to withstand His designs. In either case, whether they were the emissaries of a wicked demon or of a wrathful Deity, the only proper and per- missible way of relief was through the offices of the Church, whose bishops and other clergy were empowered to perform the adjurations and maledictions or to prescribe the penances and propitiations necessary to produce this result. If the insects were instruments of the devil, they might be driven into the sea or banished to some arid region, where they would all miserably perish; if, on the other hand, they were recog- nized as the ministers of God, divinely delegated to scourge mankind for the promotion of piety, it would be suitable, after they had fulfilled their mission, to cause them to withdraw from the cultivated fields and to assign them a spot, where they might live in comfort without injury to the inhabitants. The records contain in- stances of both kinds of treatment. It was also as a protection against evil spirits that the penalty of death was inflicted upon 6 The Criminal Prosecution and domestic animals. A homicidal pig or bull was not necessarily assumed to be the incarnation of a demon, although it was maintained by eminent authorities, as we have shown in the present work, that all beasts and birds, as well as creep- ing things, were devils in disguise ; but the homi- cide, if it were permitted to go unpunished, was supposed to furnish occasion for the intervention of devils, who were thereby enabled to take pos- session of both persons and places. This belief was prevalent in the Middle Ages, and is still taught by the Catholic Church. In a little volume entitled Die Verwaltung des Exorcistats nach Massgabe der romischen Benediktionale, of which a revised and enlarged edition was published at Stuttgart in 1893 for the use of priests as a manual of instruction in performing exorcisms, it is expressly stated by the reverend author. Dr. Theobald Bischofberger, that a spot, where a murder or other heinous crime has been committed, if the said crime remains unde- tected or unexpiated, is sure to be infested by demons, and that the inmates of a house or other building erected upon such a site will be peculiarly liable to diabolical possession, how- ever innocent they may be personally. Indeed, the more pure and pious they are, the greater will be the efforts of the demons to enter into and annoy them. Not only human beings, but also all cattle after their kind, and even the fowls of the barnyard are subject to infernal Capital Punishment of Animals 7 vexations of this sort. The infestation thus pro- duced may continue for centuries, and, although the property may pass by purchase or inheritance into other hands and be held successively by any number of rightful owners, the demons remain in possession unaffected by legal conveyances. If each proprietor imagines he has an exclusive title to the estate, he reckons without the host of devils, who exercise there the right of squatter sovereignty and can be expelled only by sacer- dotal authority. Dr. Bischofberger goes so far as to affirm that it behoves the purchaser of a piece of land to make sure that it is unen- cumbered by devils as well as by debts, other- wise he may have to suffer more from a demoniac lien than from a dead pledge or any other form of obligation in law. Information concerning the latter can be obtained at the registry of deeds, but it is far more difficult to ascertain whether the infernal powers have any claims upon it, since this knowledge can be derived only inferentially and indirectly from inquiries into the character of the proprietors for many genera- tions and must always rest upon presumptive evidence rather than positive proof. Our author does not hesitate to assert that houses which have been the abodes of pious people from time immemorial ought to have a higher market value than the habitations of notoriously wicked families. It is thus shown that " godliness is profitable " not only " unto all things," but also. 8 The Criminal Prosecution and as mediaeval writers were wont to say, unto some things besides, wliich the apostle Paul in his admonitions to his "son Timothy" never dreamed of. We, are also told that the aura corrumpens resulting from diabolical infesta- tion imparts to the dwelling a peculiar taint, which it often retains for a long time after the demons have been cast out, so that sensitive persons cannot enter such a domicile without getting nervously excited, slightly dizzy and all in a tremble. The carnal mind, which is at enmity with all supernatural explanations at 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 Capital Punishment of Animals 9 and the admission of fresh air makes it quite easy to cast out the demons. A German veter- inarian, who reports several instances of this kind, tried in vain to convince the peasants that the trouble was due, not to sorcery, but to the absence of proper sanatory conditions, and finally, in despair of accomplishing his purpose in any other way, told them that if the windows were left open so that the witches could go in and out freely, the demons would not enter into the cattle. This advice was followed and the malign influence ceased. The ancient Greeks held that a murder, whether committed by a man, a beast, or an inanimate object, unless properly expiated, would arouse the furies and bring pestilence upon the land; the mediaeval Church taught the same doctrine, and only substituted the demons of Christian theology for the furies of classical mythology. As early as 864, the Council of Worms decreed that bees, which had caused the death of a human being by stinging him, should be forthwith suffocated in the hive before they could make any more honey, otherwise the entire contents of the hive would become demoniac- ally tainted and thus rendered unfit for use as food; it was declared to be unclean, and this declaration of impurity implied a liability to diabolical possession on the part of those who, like Achan, "transgressed in the thing ac- cursed." It was the same horror of aiding and lo The Criminal Prosecution and ibetting demons and enabling them to extend ;heir power over mankind that caused a cock, ivhich was suspected of having laid the so-called ' basilisk-egg," or a hen, addicted to the jminous habit of crowing, to be summarily put :o death, since it was only by such expiation that he evil could be averted. A Swiss jurist, Eduard Osenbriiggen (Studien ',ur deutschen und schweizerischen Rechtsges- -.hichte. Schaffhausen, 1868, p. 139-149), en- leavours to explain these judicial proceedings )n the theory of the personification of animals. \s only a human being can commit crime and hus render himself liable to punishment, he ;oncludes that it is only by an act of personifica- ion that the brute can be placed in the same ategory as man and become subject to the same )enalties. In support of this view he refers to he fact that in ancient and mediaeval times lomestic animals were regarded as members of he household and entitled to the same legal )rotection as human vassals. In the Prankish apitularies all beasts of burden or so-called uments were included in the king's ban and njoyed the peace guaranteed by royal author- ty : Ut jumenta pacem habent similiter per lannum regis. The weregild extended to them s it did to women and serfs under cover of the nan as master of the house and lord of the (lanor. The beste covert, to use the old legal •hraseology, was thus invested with human Capital Punishment of Animals 1 1 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 house- holder was permitted to appear before the court and make complaint, carrying on his arm a dog, cat or cock, and holding in his hand three straws taken from the roof as symbols of the house. Symbolism and personification, as applied to animals and inanimate objects, unquestionably played an important part in primitive legislation, but this principle does not account for the excom- munication and anathematization of noxious vermin or for the criminal prosecution and capital punishment of homicidal beasts, nor does it throw the faintest light upon the origin and purpose of such proceedings. Osenbriiggen's statement that the cock condemned to be burned at Bale was personified as a heretic (Ketzer) and therefore sentenced to the stake, is a far-fetched and wholly fanciful explanation. As we have already seen, the unfortunate fowl, suspected of laying an egg in violation of its nature, was feared as an abnormal, inauspicious, and there- 12 The Criminal Prosecution and fore diabolic creature ; the fatal cockatrice, which was supposed to issue from this egg when hatched, and the use 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 enact- ment chiefly as a police regulation designed to protect persons against unruly cattle, it was, like the decree of death against witches, genetically connected with the Hebrew cult and had there- fore an essentially religious character. It was these two paragraphs of the Mosaic law that Christian tribunals in the Middle Ages were wont to adduce as their authority for prosecut- ing and punishing both classes of delinquents, although in the application of them they were undoubtedly incited by motives and influenced by fears wholly foreign to the mind of the Capital Punishment of Animals 13 Levitical legislator. The extension of Christi- anity beyond the boundaries of Judaism and the conversion of Gentile nations led to its gradual but radical transformation. The propagation of the new and aggressive faith among the Greeks and Romans, and especially among the Indo-Ger- manic tribes of Northern Europe, necessarily deposed, degraded and demonized the ancestral deities of the proselytes, who were taught hence- forth to abjure the gods of their fathers and to denounce them as devils. Thus missionary zeal and success, while saving human souls from endless perdition, served also to enlarge the realm of the Prince of Darkness and to increase the number of his subjects and^ satellites. The new convert saw them with his mind's eye skulking about in obscure places, haunting forest dells and mountain streams by day, approaching human habitations by night and waiting for opportunities to lure him back to the old worship or to take vengeance upon him for his recreancy. Every untoward event furnished an occasion for their intervention, which could be averted or repelled only by the benedictions, exorcisms or anathemas of the Church. The ecclesiastical authorities were therefore directly interested in encouraging this superstitious belief as one of the chief sources of their power, and it was for this reason that diabolical agencies were assumed to be at work in every maleficent force of nature and to be incarnate in every noxious 14 The Criminal Prosecution and creature. That this docrine is still held and this policy still pursued by the bishops and other clergy of the Roman CaFholic Church, no one familiar with the literature of the subject can deny. Besides the manuals and rituals already cited, consult, for example, Die deutschen Bischofe 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 su Ehren der Unbefleckten Gottes-Mutter Maria and Der Sendbote des gottlichen 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 psychiaterical investigations, would seem to obscure and even to obliterate the line of distinc- tion between man and beast, so far as their capacity for committing crime and their moral responsibility for their misdeeds are concerned. According to Lombroso there are i delinquenti nati fra gli animali, beasts which are born criminals and wilfully and wantonly injure others of their kind, violating with perversity and premeditation the laws of the society in Capital Punishment of Aninaals 15 which they live. Thus the modern criminologist recognizes the existence of the kind of malefactor characterized by Jocodus Damhouder, a Belgian jurist of the sixteenth century, as bestia laedens ex interna malitia; but although he might admit that the beast perpetrated the deed with malice aforethought and with the clear consciousness of wrong-doing, he would never think of bringing such a creature to trial or of applying to it the principle of retributive justice. This example illustrates the radical change which the theory of punishment has undergone in recent times and the far-reaching influence which it is beginning to exert upon penal legislation. In the second part of the present work the writer calls attention to this important revolution in the province of criminology, discussing as concisely as possible its essential features and indicating its general scope and practical tendencies, so far as they have been determined. It must be remembered, however, that, although the savage spirit of revenge, that eagerly demands blood for blood without the slightest consideration of the ana- tomical, physiological or psychological con- ditions upon which the commission of the specific act depends, has ceased to be the controlling factor in the enactment and execution of penal codes, the new system of jurisprudence, based upon more enlightened conceptions of human responsibility, is still in an inchoate state and very far from having worked out a satisfactory 1 6 The Criminal Prosecution and solution of the intricate problem of the origin and nature of crime and its proper penalty. In 1386, an infanticidal sow was executed in the old Norman city of Falaise, and the scene was represented in fresco on the west wall of the Church of the Holy Trinity in that city. This curious painting no longer exists, and, so far as can be ascertained, has never been engraved. It has been frequently and quite fully described by different writers, and the frontispiece of the present volume is not a reproduction of the original picture, but a reconstruction of it accord- ing to these descriptions. It is taken from Arthur Mangin's L'Homme et la Bete (Paris, 1872), of which all the illustrations are more or less fancy sketches. A full account of the trial and execution is given in the present volume. The iconographic edition of Jocodus Dam- houder's Praxis Rerum Criminalium (Antwerpix, 1562) contains at the beginning of each section an engraving representing the perpetration of the crimes about to be discussed. That at the head of the chapter entitled " De Damno Pecu- ario " is a lively picture of the injuries done by animals and rendering them liable to criminal process; it is reproduced facing page 161 of the present work. The most important documents, from which our knowledge of these judicial proceedings is derived, are given in the Appendix, together with a complete list of prosecutions and excommunica- Capital Punishment of Animals 17 tions during the past ten centuries, so far as we have been able to discover any record of them . The 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 ausldndischen Literatur (Jena, 1830, LXV. pp. 152-55), Jor- gensen's Nogle Frugter af mil Otium (Kopen- hagen, 1834, PP- 216-23); Cretella's " Gli Ani- mali sotto Processo," in Fanfulla della Domenica (Florence, 1891, No. 65), all three based upon the archival researches of Berriat-Saint-Prix and M^nabr^a, and Soldan's "La Personification des Animaux in Helvetia," in Monatsschrift der Studentenverbindung Helvetia (VII. pp. 4-17), which is a mere restatement of Osenbriiggen's theory. In conclusion the author desires to express his sincere thanks to Dr. Laubmann, Director of the Munich Hof- und Staatsbibliothek, as well as to the other custodians of that library, for their uniform kindness and courtesy in placing at his disposal the printed and manuscript treasures committed to their keeping. 1 8 The Criminal Prosecution and CHAPTER I BUGS AND BEASTS BEFORE THE LAW It is said that Bartholomew Chassehee,^ a distinguished French jurist of the sixteenth century (born at Issy-l'Ev^que in 1480), made his reputation at the bar as counsel for some rats, which had been put on trial before the ecclesi- astical court of Autun on the charge of having feloniously eaten up and wantonly destroyed the barley-crop of that province. On complaint formally presented by the magistracy, the official or bishop's vicar, who exercised jurisdiction in such cases, cited the culprits to appear on a certain day and appointed Chassen6e to defend them. In view of the bad repute and notorious guilt of his clients, Chassenee was forced to emjploy 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, T ' ^HJ^j"?,^ "* ^*° spelled Chassanfe and Chasseneux. In the Middle Ages, and even as late as the end of the eighteenth century, the orthography of proper names was very uncertain. Capital Punishment of Animals 19 or at least to defer and mitigate the sentence of the judge. He urged, in the first place, that inasmuch as the defendants were dispersed over a large tract of country and dwelt in numerous villages, a single summons was insufficient to notify them all; he succeeded, therefore, in obtaining a second citation, to be published from the pulpits of all the parishes inhabited by the said rats. At the expiration of the considerable time which elapsed before this order could be carried into effect and the proclamation be duly made, he excused the default or non-appearance of his clients on the ground of the length and difficulty of the journey and the serious perils which attended it, owing to the unwearied vigilance of their mortal enemies, the cats, who watched all their movements, and, with fell intent, lay in wait for them at every corner and passage. On this point Chassen^e 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 arid Orsini in Rome. At a later period of his life Chassen^e was reminded of the legal principle thus laid down and urged to apply it in favour of clients more 20 The Criminal Prosecution and worthy of its protection than a horde of vagrant rodents. In 1540 he was president of the judicial assembly known as the Parliament of Provence on a memorable occasion when the iniquitous measure for the extirpation of heresy by exter- minating the Waldenses in the villages of Cabri^res and Merindol was under discussion. One of the members of the tribunal, a gentleman from Aries, Renaud d'Alleins, ventured to suggest to the presiding officer that it would be extremely unjust to condemn these unfortunate heretics without granting them a hearing and permitting an advocate to speak in their defence, so that they might be surrounded by all the safe- guards of justice, adding that the eminent jurist had formerly insisted upon this right before the court of Autun and maintained that even animals should not be adjudged and sentenced without having a proper person appointed to plead their cause. Chassen6e 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 Themis Junsconsulte for 1820 (Tome I. pp. 194 sqq.) by Berriat Saint-Prix, on the authority of the celebrated Jacques Auguste De Thou, President Capital Punishment of Animals 21 of the Parliament of Paris, the sentence pro- nounced by the official is not recorded. But whatever the judicial decision may have been, the ingenuity and acumen with which Chassen^e conducted the defence, the legal learning which he brought to bear upon the case, and the elo- quence of his plea enlisted the public interest and established his fame as a criminal' lawyer and forensic orator. Chassen^e is said to have been employed in several cases of this kind, but no records of them seem to have been preserved, although it is possible that they may lie buried in the dusty archives of some obscure provincial town in France, once the seat of an ecclesiastical tribunal. The whole subject, however, has been treated by him exhaustively in a book entitled Consilium primum, quod tractatus jure did potest, propter multiplicem et reconditam doctrinam, ubi lucu- lenter et accurate tractatur quaestio ilia: De excommunicatione animalium. insectorum. This treatise, which is the first of sixty-nine consilia, embodying opinions on various legal questions touching the holding and transmission of pro- perty, entail, loans, contracts, dowries, wills, and kindred topics, and which holds a peculiar place in the history of jurisprudence, was originally published in 1531, and reprinted in 1581, and again in 1588. The edition referred to in the> present work is the first reprint of 1581, a copy of which is in the Royal Court and State Library of Munich. 22 The Criminal Prosecution and This curious dissertation originated, as it appears, in an application of the inhabitants of Beaune to the ecclesiastical tribunal of Autun for a decree of excommunication against certain noxious insects called huberes or hurebers, pro- bably a kind of locust or harvest-fly. The request was granted, and the pernicious creatures were duly accursed. Chassen^e now raises the query whether such a thing may be rightfully and lawfully done (sed an 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 under- stood by us, and therefore rashly giving them our assent." He divides his treatise into five parts, or rather discusses the subject under five heads : " First, lest I may seem to discourse to the populace, how are these our animals called in the Latin language ; secondly, whether these our animals can be summoned; thirdly, whether they can be summoned by procurators, and, if they are cited to appear personally, whether they can appear by proxy, i. e. through procurators ap- Capital Punishment of Animals 23 pointed by the judge who summons them; fourthly, what judge, whether layman or ecclesiastic, is competent to try them, and how he is to proceed against them and to pass and execute sentence upon them ; fifthly, what con- stitutes an anathema and how does it differ from an excommunication." Chassen^e's method of investigation is not that of the philosophic thinker, who marshals facts under general laws and traces them to rational causes, but combines that of the lawyer, who quotes precedents and examines witnesses, with that of the theologian, who balances authorities and serves us with texts instead of arguments. He scrupulously avoids all psychological speculation or metaphysical reasoning, and simply aims to show that animals have been tried, convicted, and sentenced by civil and ecclesiastical courts, and that the com- petence of these tribunals has been generally recognized. The documentary evidence adduced is drawn from a great variety of sources : the scriptures of the Old and New Testament, pagan poets and philosophers, patristic theologians and homilists, mediaeval hagiologists, Virgil, Ovid, Pliny, Cicero, Cato, Aristotle, Seneca, Silius Italicus, Boethius, Gregory the Great, Pico della Mirandola, the laws of Moses, the prophecies of Daniel, and the Institutes of Justinian are alike laid under contribution and quoted as of equal authority. All is fish that comes to his net out 24 The Criminal Prosecution and of his erudition, be it salmon or sea-urchin. If twelve witnesses can be produced in favour of a statement, and only two against it, his reason bows to the will of the majority, and accepts the proposition as proved. It must be added, however, to his credit, that he proceeds in this matter with strict impartiality and perfect recti- tude, takes whatever evidence is at hand, and never tries to pack the witness-box. His knowledge of obscure and now utterly for- gotten authors, secular and ecclesiastic, is immense. Like so many scholars of his day he was prodigiously learned, without being remark- able for clearness or originality of thought. Indeed, the vastness of his erudition seems rather to have hampered than helped the vigorous growth of his intellectual faculties. He often indulges in logical subtilties so shallow in their speciousness, that they ought not to deceive the veriest smatterer in dialectics; and the reader is constantly tempted to answer his laboured argu- mentations, as Tristram Shandy's Uncle Toby did the lucubrations of Corporal Trim, by "whistling half-a-dozen bars of Lillibullero." The examples he adduces afford striking illustra- tions of the gross credulity to which the strongly conservative, precedent-mongering mind of the jurisconsult is apt to fall an easy prey. The habit of seeking knowledge and guidance exclu- sively in the records and traditions of the past, in the so-called " wisdom of ages," renders him Capital Punishment of Animals 25 peculiarly liable to regard every act and utterance of antiquity as necessarily wise and authoritative. In proof of the power of anathemas, Chassen^e refers to the cursing of the serpent in the Garden of Eden, causing it to go upon its belly for all time; David's malediction of the mountains of Gilboa, so that they had neither rain nor dew; God's curse upon the city of Jericho, making its strong walls fall before the blasts of trumpets; and in the New Testament the withered fig-tree of Bethany. The words of Jesus, " Every tree that bringeth not forth good fruit is hewn down and cast into the fire," he interprets, not merely as the best means of getting rid of a cumberer of the orchard, but as a condemnation and punish- ment of the tree for its delinquencies, and adds : " If, therefore, it is permitted to destroy an irrational thing, because it does not produce fruit, much more is it permitted to curse it, since the greater penalty includes the less (cum si liceat quid est plus, debet licere quid est minus). An English professor of divinity, Richard Chevenix Trench, justifies the withering of the fruitless fig-tree on the same ground or, at least, by a similar process of reasoning: "It was punished, not for being without fruit, but for proclaiming by the voice of those leaves that it had such; not for being barren, but for being false." According to this exegesis, it was the telling of a wilful lie that " drew on it the curse." The guilty fig is thus endowed with a moral 26 The Criminal Prosecution and character and made clearly conscious of the crime for which it suffered the penalty of death : " Almost as soon as the word of the Lord was spoken, a shuddering fear may have run through all the leaves of the tree, which was thus stricken at the heart." As regards the culpability and punishableness of the object, the modern divine and the mediaeval Jurist occupy the same stand- point; only the latter, with a stricter judicial sense, insists that there shall be no infliction of punishment until the malefactor has been con- victed by due process of law, and that he shall enjoy all the safeguards which legal forms and technicalities have thrown around him and under whose covert even the vilest criminal has the right to take refuge. The Anglican herme- neutist, on the contrary, would justify the curse and admit the validity of the anathema, although it was only the angry expression of an unreason- able impatience disappointed in not finding fruit at the wrong season, " for the time of figs was not yet." A curious and characteristic specimen of the absurd and illogical inferences, which Chassen^e is constantly deducing from his texts, is the use he makes of the passage in Virgil's first Georgic, in which the poet remarks that " no religion has forbidden us to draw off water-courses for irrigat- ing purposes, to enclose crops with fences, or to lay snares for birds," all these things being essential to successful husbandry. But from the Capital Punishment of Animals 27 right to snare birds, our jurisprudent infers the right to excommunicate them, since " no snares are stronger than the meshes of an anathema." Far-fetched deductions and wretched twaddle of this sort fill many pages of the famous lawyer's dissertation. Coming down to more recent times, Chassen^e mentions several instances of the effectiveness of anathemas, accepting as convincing testimony the ecstacies of saints and the extravagant state- ments of hagiologists without the slightest ex- pression of doubt as to the truth of these legends. Thus he relates how a priest anathematized an orchard, because its fruits tempted the children of his parish and kept them away from mass. The orchard remained barren until, at the solici- tation of the Duchess of Burgundy, the ban was removed. In like manner the Bishop of Lau- sanne freed Lake Leman from eels, which had become so numerous as seriously to interfere with boating and bathing ; on another occasion in the year 1451 the same ecclesiastic expelled from the waters of this lake an immense number of enor- mous blood-suckers, which threatened to destroy all the large fish and were especially fatal to salmon, the favourite article of food on fast-days. This method of procedure was both cheap and effective and, as Felix Malleolus informs us in his Tractatus de Exorcisms (I), received the appro- bation of all the learned doctors of the Univer- sity of Heidelberg : omnes studii Heydelber- 28 The Criminal Prosecution and gensis Doctores hujusmodi ritus videntes et legentes consenserunt. By the same agency an abbot changed the sweet white bread of a Count of Toulouse, who abetted and protected heresy, into black, mouldy bread, so that he, who would fain feed souls with corrupt spiritual food, was forced to satisfy his bodily hunger with coarse and unsavoury provender. No sooner was the excommunication removed than the bread re- sumed its original purity and colour. Egbert, Bishop of Trier, anathematized the swallows, which disturbed the devotions of the faithful by their chirping and chattering, and sacrilegiously defiled his head and vestments with their drop- pings, when he was officiating at the altar. He forbade them to enter the sacred edifice on pain of death ; and it is still a popular superstition at Trier, that if a swallow flies into the cathedral, it immediately falls to the ground and gives up the ghost. Another holy man, known as John the Lamb, cursed the fishes, which had incurred his anger, with results equally fatal to the finny tribe. It is also related of the honey-tongued St. Bernard, that he excommunicated a countless swarm of flies, which annoyed the worshippers and officiating priests in the abbey church of Foigny, and lo, on the morrow they were, like Sennacherib's host, "all dead corpses." William, Abbot of St. Theodore in Rheims, who records this miraculous event, states that as soon as the execration was uttered, the flies fell to the floor Capital Punishment of Animals 29 in such quantities that they had to be thrown out with shovels (palis ejicientes). This incident, he adds, was so well known that the cursing of the flies of Foigny became proverbial and formed the subject of a parable. [Vita S. Bernardi, auctore Wilhelmo abbate S. Thod. Rhem. I. 11.] According to the usual account, the malediction was not so drastic in its operation and did not cause the flies to disappear until the next day. The rationalist, whose chill and blighting breath is ever nipping the tender buds of faith, would doubtless suggest that a sharp and sudden frost may have added to the force and efficacy of the excommunication. The saint resorted to this severe and summary measure, says the monkish chronicler, because the case was urgent and " no other remedy was at hand." Perhaps this lack of other means of relief may refer to the absence of " deacons with fly-flaps," who, according to a contemporary writer, were appointed "to drive away the flies when the Pope celebrateth." The island Reichenau in Lake Constance, which derives its name from its fertility and is especially famous for the products of its vine- yards and its orchards, was once so infested by venomous reptiles as to be uninhabitable by human beings. Early in the eighth century, as the legend goes, it was visited by St. Pir- minius, and no sooner had he set foot upon it than these creatures all crawled and wriggled into the water, so that the surface of the lake was 30 The Criminal Prosecution and 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 Fiisseri 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, 173 1, 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; ^ in 1740 the commune of Piuro purchased from His Holiness a similar anathema; in the same year the common council of Chiavenna discussed the propriety of applying to Rome for an execratory against beetles and bears; and in December 1752 it was proposed by the same body to take like summary measures ' " Item : a 6t6 dflibdrd que la villa sejoindra aux paroisses de cette province qui.voudront obtenir de Rome una excom- munication contre les insects et que Ton contribuera aux frais au pro rata." Capital Punishment of Animals 31 in order to get rid of a pest of rodents. In 1729, 1730 and 1749 the municipal council of Lucerne ordered processions to be made on St. Magnus' Day from the Church of St. Francis to Peter's Chapel for the purpose of expelling weevils. This custom was observed annually from 1749 to 1798. The pompous ceremony has been superseded in Protestant countries by an officially appointed day of fasting and prayer. In his " First Counsel " Chassen^e not only treats of methods of procedure, and gives forms of plaints to be drawn up and tendered to the tribunal by the injured party, as well as useful hints to the pettifogger in the exercise of his tortuous and tricky profession, but he also dis- cusses many legal principles touching the jurisdiction of courts, the functions of judges, and other characteristic questions of civil, criminal, and canonical law. Animals, he says, should be tried by ecclesiastical tribunals, except in cases where the penalty involves the shedding of blood. An ecclesiastical judge is not competent in causa sanguinis, and can impose only canonical punishments, although he may have jurisdrction in temporal matters and punish crimes not involving a capital sentence. [Nam judex ecclesiasticus in causa sanguinis non est competens judex, licet habeat juris dictionem in temporatibus et possit crimina poenam sanguinis non existentia (exigentia is obviously the correct reading) castigare. Cons. prim. IV. § 5.] For 32 The Criminal Prosecution and this reason the Church never condemned heretics to death, but, having decided that they should die, gave them over to the secular power for formal condemnation, usually under the hollow and hypocritical pretence of recommend- ing them to mercy. In the prosecution of animals the summons was commonly published from the parish pulpit and the whole judicial process bore a distinctively ecclesiastical character. In most cases the presiding judge or official was the vicar of the parish acting as the deputy of the bishop of the diocese. Occasion- ally the curate officiated in this capacity. Some- times the trial was conducted before a civil magistrate under the authority of the Church, or the matter was submitted to the adjudication of a conjurer, who, however, appointed two proctors to plead respectively for the plaintiff and the defendant and who rendered his verdict in due legal form. Indeed, the word "conjurer" seems to have been used as a popular designation of the person, whether priest or layman, who exercised judicatory functions in such trials, probably because, as a rule, the sentence could be executed only by conjuration or the invocation of supernatural aid. Another point, which strikes us very comic- ally, but which had to be decided before the trial could proceed, was whether the accused were to be regarded as clergy or laity. Chassenee Capital Punishment of Animals 33 thinks that there is no necessity of testing each ■individual case, but that animals should be looked upon as lay persons. This, he declares, should be the general presumption ; but if any one wishes to affirm that they have ordinem dericatus and are entitled to benefit of clergy, the burden of proof rests upon him and he is bound to show it (deberet estud probare). Pro- bably our jurist would have made an exception in favour of the beetle, which entomologists call clerus.; it is certain, at any rate, that if a bug bearing this name had been brought to trial, the learning and acuteness displayed in arguing the point in dispute would have been astounding. We laugh at the subtilties and quiddities of mediaeval theologians, who seriously discussed such silly