Critters and Crime: Bugs and Beasts Before the Law by E.P. Evans 1884

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Critters and Crime: Bugs and Beasts Before the Law by E.P. Evans 1884

BUGS AND BEASTS BEFORE THE LAW by E. P. Evans

It is said that Bartholomew Chassenee, a distinguished French jurist of the sixteenth century, made his reputation at the bar as counsel for some rats, which were put on trial before the ecclesiastical court of Autun on the charge of having feloniously eaten up and wantonly destroyed the barley 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 Chassenee to defend them. In view of the bad repute and notorious guilt of his clients, Chassenee was forced to employ all sorts of legal shifts and chicane, dilatory pleas and other technical objections, hoping thereby to find some loophole 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 Chassenee addressed the court at some length, and showed that if a person be cited to 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 an appeal be expressly precluded in the summons. In the report of the trial given by Berriat-Saint-Prix, on the authority of the celebrated President De Thou, the sentence pronounced by the official is not recorded. But whatever the result may have been, the ingenuity and acumen with which Chassenee conducted the defense, 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 a forensic orator.

Chassenee is said to have been employed in several cases of this kind, but no records of them seem to have been preserved. The whole subject, however, has been treated by him in a book entitled Consilium primum, quod tractatus jure dici potest, propter multiplicem et reconditam doctrinam, ubi luculenter et accurate tractatur quaestio illa: De excommunicatioue 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, 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 paper is that of 1581.

This curious volume 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 insects called huberes or hurebers, probably a kind of locust or harvest-fly. The request was granted, and the noxious creatures were duly accursed. Chassenee now raises the query whether such a thing may be rightfully and lawfully done, 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 under pain of anathema and perpetual malediction. And although in times past there has never been any doubt of this, yet I have thought that the subject should be examined, lest I should seem to fall into the vice censured by Cicero of regarding things which we do not know as if they were understood by us, and hence rashly giving them our assent." His method of investigation is not that of a philosophic thinker, but that of a lawyer, who quotes precedents and appeals to authorities. 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.

This documentary evidence is drawn from a great variety of sources: the scriptures of the Old and New Testament, pagan poets and philosophers, patristic theologians and homilists and mediaeval hagiologists, the laws of Moses, the prophecies of Daniel, and the Institutes of Justinian are alike laid under contribution. All is fish that comes to his net out of the deeps of his erudition, be it salmon or sea-urchin. He weighs testimony as a grocer weighs tea, by the pound avoirdupois. If twelve witnesses can be produced in favor of a statement, and only ten against it, his reason bows to the will of the majority, and accepts the proposition as proved. It must be said, however, to his credit, that he proceeds in this matter with strict and impartial rectitude, and never tries to pack the witness-box.

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 the past as wise and authoritative. In proof of the power of anathemas, Chassenee refers to the cursing of the serpent in the Garden of Eden, David's malediction of the mountains of Gilboa, and 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 as implying a punishment of the tree, 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."

An English professor of divinity, Richard Chenevix Trench, justifies the withering of the fruitless fig-tree on the same ground. "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 willful lie that "drew on it the curse." The guilty fig was also conscious of the crime for which it suffered: "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 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.

Coming down to more recent times, Chassene'e mentions several instances of the effectiveness of anathemas. Thus a priest excommunicated an orchard because its fruits tempted the children and kept them away from mass. The orchard remained barren until, at the solicitation of the Duchess of Burgundy, the excommunication 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. By the same agency an abbot changed the sweet white bread of a Count of Toulouse, who abetted 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 unsavory provender. Egbert, Bishop of Trier, anathematized the swallows which disturbed the devotions of the faithful by their chirping and chattering, and sacrilegiously defiled his vestments whilst 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 down and gives up the ghost. It is also related of St. Bernard that he excommunicated a countless swarm of flies which annoyed the worshipers in the abbey church of Foigny; and lo, on the morrow they were, like Sennacherib's host, "all dead corpses." The rationalist, whose chill and ruthless breath is ever blasting the tender buds of faith, would doubtless suggest that a sharp and sudden frost may have helped the malediction. The saint resorted to this severe and summary measure, says the monkish chronicler, because "no other remedy was at hand." Perhaps this may refer to the "deacons with flyflaps," who, according to a contemporary writer, were appointed "to drive away the flies when the Pope celebrateth."

In his First Counsel Chassenee not only treats of methods of procedure and gives useful hints to the pettifogger in the exercise of his tricky and tortuous 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, but can impose only canonical punishments. This is why the church never condemned heretics to death, but, having determined that they should die, gave them over to the secular power for condemnation, usually under the hollow form of recommending them to mercy. 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 laity or as clergy. Chassenee thinks that there is no need 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. Possibly our jurisprudent would have made an exception in favor of the beetle, which entomologists call clerus; it is certain, at any rate, that if a bug bearing this name had ever been brought to trial, the learning and acuteness displayed in arguing the point would have been astounding. We laugh at the subtilties and quiddities of mediaeval theologians, and the silly questions they so seriously discussed. But this was the mental habit of the age, the result of scholastic training and scholastic methods, which tainted law no less than divinity.

Sometimes the obnoxious vermin were generously forewarned. Thus the grand-vicars of Jean Robin, Cardinal Bishop of Autun, having been informed that slugs were devastating several estates in 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 field 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 which laid waste the vines, and threatened them with anathema unless they should disappear within six days. Here it is expressly stated that a counselor was assigned to the accused, and a prosecutor was heard in behalf of the aggrieved inhabitants. As a means of rendering the anathema more effective, the people are also urged to be prompt and honest in the payment of tithes. Chassenee, too, indorses this view, and in proof of it refers to Malachi, where God promises to rebuke the devourer for man's sake, provided all the tithes are brought into the storehouse.

Felix Malleolus, in his Tractatus de Exorcismis, states that in the fourteenth century the peasants in the electorate of Mayence brought a complaint against some Spanish flies, which were accordingly cited to appear; but "in view of their small size and the fact that they had not yet come to 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 peacefully to retire. How they were induced to go into this reservation and to remain there we are not informed. In 1519, the commune of Stelvio, in Western Tyrol, instituted proceedings against the moles on account of damage done to the fields " by burrowing and throwing up the earth, so that neither grass nor green thing could grow." But " in order that the said moles 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 defense, " to the end that they may have nothing to complain of in these proceedings." Schwarz Minig was the prosecuting attorney, and a long list of witnesses is given who testified that the injury done by these creatures to the crops rendered it quite impossible for tenants to pay their rents. The counsel for the defendants urged the many benefits conferred by his clients upon the community, and concluded by expressing the hope that, if they should be sentenced to depart, some other place of abode might be assigned to them, suitable for their sustenance and support. 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 this request, and mitigated the sentence of perpetual banishment by ordering that "a free safe conduct of fourteen days be granted to each of them, and an additional respite of fourteen days be allowed to those which are with young."

A Bernese curate, named Schmid, thus solemnly warned and threatened a kind of vermin called inger: "Thou irrational and imperfect creature the inger, of which there were none in Noah's ark, by the authority of my gracious lord the Bishop of Lausanne, in the name of the ever-lauded and most blessed Trinity, through the merits of our Saviour Jesus Christ, and in obedience to the Holy Apostolic Church, I command you, each and all, to depart, within six days, from all places in which food for man springeth up and groweth." In case no heed was given to this injunction, the aforesaid inger were summoned to appear "on the sixth day after midday, at one o'clock, before his grace the Bishop of Losann gen Wivelsburg," and there to answer for their conduct. The advocate who defended them detected a technical error in the proceedings, which made it necessary to issue a second summons, wherein the accused are denounced as "ye accursed uncleanness of the inger, which shall not even be called animals." Finally, the inger persisting in their obduracy, "Benedict of Montferrand, Bishop of Losan, at the entreaty of the high and mighty lords of Berne," laid upon them his exterminatory curse and ban, "that nothing whatever of them remain save for the use and profit of man." The Bernese government ordered a report to be made of the results. But the episcopal anathema appears to have proved mere brutum fulmen; nothing more was heard of it, says Schilling, "owing to our sins."

In Protestant communities, the priest as exorcist has been superseded mostly by the professional conjurer, who in some parts of Europe is still employed to save the crops from devastation. A curious case of this kind is recorded in Gorres Hist. Polit. Blatter for 1845. A Protestant gentleman in Westphalia, whose garden was being rapidly consumed by worms, after having tried various vermicidal remedies, 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 pieces of lime at the conjurer. He requested them to desist, and finally said; "If you do not leave me in peace I will send all the worms up on the roof." This threat only increased 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 left 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 abandon their work, and stood in the court below covered with confusion and with cabbage-worms. The writer who relates this incident believes that it actually occurred, and ascribes it to "the force of human faith, 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, the wish being thereby transformed 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 thought it possible to wound a man's body, or to pierce it through as with a sword. He also declared that brutes were 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 postulation of the will as the sole energy and reality 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.

It is natural that a religion of individual initiative and personal responsibility like Protestantism should put less confidence in theurgic machinery and formularies of execration than a religion like Catholicism, in which man's spiritual concerns are intrusted to a corporation, to be managed according to traditional and infallible methods. We have an illustration of this tendency in a decree published at Dresden, in 1559, by "Augustus, Duke of Saxony 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, vexatious, and great clamor and scandalous unchastity during the sermon, to the hindrance of God's word and of Christian devotion." But the Dresden 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 to accomplish his purpose. He put them out of the pale of public sympathy and protection, and gave them over as a prey to the spoiler. He enjoined upon the hunter and the fowler to lie in wait for them with guns and with snares; and the elector issued his decree in order to enforce this duty as imperative on all good Christians.

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 the larger quadrupeds. In the Report and Researches on this subject, published by Berriat-Saint-Prix in the Memoirs of the Royal Society of the Antiquaries of France, numerous extracts from the original records of such proceedings are given, and also a list of the animals thus tried and executed, extending from the beginning of the twelfth to the middle of the eighteenth century, 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. Three belong to the twelfth century, four to the fourteenth, twenty to the fifteenth, seventeen to the sixteenth, thirty-seven to the seventeenth, and one to the eighteenth century. It would be incorrect to infer from this list that no judicial punishments of animals occurred in the thirteenth century, or that the seventeenth century was particularly addicted to such practices. During some periods the registers of the courts were very imperfectly kept, and in many instances the archives were entirely destroyed.

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 was most frequently inflicted. Occasionally a merciful judge adhered to the letter of the law by sentencing the culprit to be slightly singed, and then to be strangled before being burned. Sometimes they were condemned to be buried alive.

[In the summer of 1796 a murrain broke out at Beutelsbach, in Wurtemberg, and soon carried off many bead of cattle. By the advice of a French veterinary doctor who was quartered there, the bull of the borough was buried alive at a crossroad in the presence of several hundred persons. We are not informed whether this sacrifice proved a sufficiently "powerful medicine" to stay the epizootic disease; the noteworthy fact is that it was prescribed, not by an African fetich-priest, but by an official of the French republic.]

 Such was the fate suffered by two pigs, in 1456, "on the vigil of the Holy Virgin" at Oppenheim on the Rhine, for killing a child. Animals were even put to the rack in order to extort confession. It is not to be supposed that the judge had the slightest expectation that any confession would be made; he wished simply to observe all forms prescribed by the law, and to set in motion the whole machinery of justice before pronouncing judgment. "The question," which in such cases would seem to be only a wanton and superfluous act of cruelty, was nevertheless an important element in determining the final decision, since the death sentence could be commuted into banishment provided the criminal had not confessed under torture. The use of the rack was therefore a 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. In another instance an appeal led to the acquittal of the accused.

In 1266, at Fontenay-aux-Roses, near Paris, a pig convicted of having eaten a child was publicly burned by order of the monks of Sainte Genevieve. In 1386, the tribunal of Falaise sentenced a sow to be mangled and maimed in the head and leg, and then to be hanged, for having torn the face and arm of a child and caused its death. Here we have a strict application of the lex talionis. 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 with clean hands, thus indicating that, as a minister of justice, he incurred no guilt in shedding blood. He was not a common butcher of swine, but a public functionary, a "master of high works" (maitre des hautes-oeuvres), as he was officially styled. 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 drawn and hanged by Jehan Pettit, lieutenant of the bailiff." The bill presented by the deputy bailiff of Mantes and Meullant, and dated March 15, 1403, contains the following items of expense incurred for the incarceration and execution of a sow:

—"Item, 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 command and authority of our said master, the bailiff, 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 was examined and approved by the auditor of the court, De Baudemont, who "in confirmation thereof affixed to it the seal of the Chatellany of Meullant, on the 24th day of March in the year 1403."

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." Brute 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 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 the "item" of "one pig, kept from the 24th of June, 1408, inclusive, till the 17th of July," when it was executed for "the crime of having murdered and killed a little child." For the pig's board he charges two deniers tournois a day, the same as for boarding a man. He also puts into the account "ten deniers tournois for a rope, found and delivered for the purpose of tying the said pig that it might not escape."

A peculiar custom is referred to in the proces-verbal of the prosecution of an infanticidal porker, 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 was 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-Moutier 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, might claim to be entitled to raiment.

In the case of a mule condemned to be burned alive at Montpellier,in 1565, as the animal was vicious and kicky 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 were often guilty of supererogatory cruelty in the exercise of their bloody functions. Writers on criminal jurisprudence repeatedly complain of this evil and call for reform. Thus Damhouder, in his Rerum Criminalium Praxis, urges magistrates to be more careful in selecting persons for this important office, and not to choose notorious violators of the law as vindicators of justice. Indeed, these hardened wretches sometimes took the law into their own hands. Thus on the 9th of June, 1576, at Schweinfurt, in Franconia, a sow, which had bitten off the ear and torn the hand of a child, was given in custody to the hangman, who, without further authority, took it to the gallows green and there "hanged it publicly, to the disgrace and detriment of the city." For this impudent usurpation of judiciary powers, Jack Ketch was obliged to flee, and never dared return.

On the 10th of January, 1457, a sow was convicted of murder, committed on the person of an infant named Jehan Martin, of Savigny, and sentenced to be hanged. Her six sucklings were also included in the indictment as accomplices; but "in default 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." About a month later, "on the Friday after the feast of the Purification of the Virgin," the sucklings were again brought before the court; and as their owner, Jehan Bailly, declined to be answerable for their future good conduct, they were declared forfeited to the noble damsel Katherine de Barnault, Lady of Savigny. Sometimes a fine was imposed upon the owner of the offending beast, as was the case with Jehan Delalande and his wife, condemned on the 18th of April, 1499, by the abbey of Josaphat, near Chartres, to pay eighteen francs "on account of the murder of a child named Gillon, aged five years and a half or thereabouts, committed by a porker, aged three months or thereabouts." The porker was "hanged and executed by justice."

Nothing would be easier than to multiply examples of this kind. The records of mediaeval courts and the chronicles of mediaeval cloisters are full of them. That such cases usually came under the jurisdiction of monasteries will not seem strange, when we remember that these religious establishments were great landholders, and at one time owned nearly one third of all real estate in France. The frequency with which pigs were adjudged to death was owing in great measure to the freedom with which they were permitted to run about the houses as well as to their immense number. They became a serious nuisance, not only as endangering the lives of children, but also as generating and disseminating diseases; so that many cities, like Grenoble in the sixteenth century, authorized the carnifex to seize and slay them whenever found at large. Sanitary measures of this kind were not common in the Middle Ages, but were an out-growth of the Renaissance. It was with the revival of letters that men began again to love cleanliness and to appreciate its hygienic value. 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 layers of filth on the body, as the age of the earth is determined by the strata which compose its crust.

But although pigs appear to have been the principal culprits, other quadrupeds were frequently called to answer for their crimes. The judiciary of the Cistercian abbey of Beaupre, in 1499, sent a bull to the gallows for having "killed with furiosity a lad of fourteen or fifteen years of age;" and in 1389 the Carthusians at Dijon caused a horse to be condemned to death for homicide. The magistrates of Bale, in 1474, sentenced a cock to be burned at the stake for the heinous and unnatural crime of laying an egg. The oeuf coquatri was supposed to be the product of a very old cock and to furnish the most active and effective ingredient of witch ointment. When hatched by a serpent or by the sun, it brought forth a cockatrice, which would hide in the roof of a house, and, with its baneful breath and "death-darting eye," destroy all the inmates. Naturalists believed in this fable as late as the eighteenth century; and in 1710 the French savant Lapeyronie read a paper before the Academie des Sciences to prove that the eggs attributed to cocks owe their peculiar form to a disease of the hen.

Animals, also, bore their full part of persecution during the witchcraft delusion. Pigs suffered most in this respect, and 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 tomb-haunting man and were permitted, at their own request, to enter into the Gadarene herd of swine. Indeed, the greatest theological authority of the Middle Ages, Thomas Aquinas, maintained that beasts are but embodiments of evil spirits. Chassene'e quotes this opinion, and adds that in excommunicating animals the anathema "is aimed inferentially at the devil, who uses irrational creatures to our detriment." Still more recently, a French Jesuit, Pere Bougeaut, set forth the same view in a philosophical treatise.

It was during the latter half of the seventeenth century, when, as we have seen, criminal prosecutions of animals were especially 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. Daudin solemnly takes his seat as judge, and declares his determination to "close his eyes to bribes and his ears to brigue." Petit Jean prosecutes the case, and L'Intirne appears for the defense. Both address the court in high-flown rhetoric, and display rare erudition in quoting authorities. The accused is condemned to the galleys. Thereupon the counsel for the defendant brings in the puppies, pauvres enfanls qu'on veut rendre orphelins, and appeals to the compassion and clemency of the judge. Daudin's feelings are touched; as a public officer, too, he is moved by the economical consideration that, if the children are deprived of their father, they must be kept in the foundling hospital at the expense of the state. To the contemporaries of Racine a scene like this had a significance which we fail to appreciate. To us it is simply farcical and not very funny; to them it was a mirror reflecting a characteristic feature of the time and ridiculing a grave judiciary abuse, as Cervantes had already represented in Don Quixote the reductio ad absurdum of chivalry.

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. No principle is held more firmly or acted upon more universally than that of literal equivalents, — 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." In the covenant with Noah it was declared that human blood should be required "at the hand of man" and "at the hand of every beast;" and it was subsequently enacted that "if an ox gore a man or a woman that they die, then the ox shall be surely stoned, and his flesh shall uot be eaten." To eat a creature which had become the peer of man in blood-guiltiness and in judicial punishment would savor of anthropophagy. The Koran holds every beast and fowl accountable for the 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 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. The laws of Drakon and Erechtheus required weapons and all other objects by which a person had lost his life to be publicly condemned and thrown beyond the Athenian boundaries. This was the sentence pronounced upon a sword which had killed a priest, the wielder of the same being unknown; and also upon the bust of the poet Theognis, which had fallen on a man and caused his death. Even in cases which might be regarded as homicide in self-defense no such ground of exculpation was admitted. Thus the statue which the Athenians erected in honor of the famous athlete, Nikon of Thasos, was assailed by his envious foes and pushed from its pedestal. In falling it crushed one of its assailants; it was brought before the proper court, and sentenced to be cast into the sea.

In the Avesta, a mad dog is not permitted to plead insanity, but is "punished with the punishment of a conscious offense," by progressive mutilation, beginning with the ears and ending with the tail. This cruel and absurd enactment is wholly inconsistent with the kindly spirit shown in the Avesta towards all animals recognized as creatures of Ahuramazda, and especially with the legal protection vouchsafed to dogs. Indeed, a paragraph in the same chapter commands the Mazdayasnians, as regards such a dog, to "wait upon him and try to heal him, just as they would attend a righteous man."

A curious example of imputed crime and its penal consequences is seen in the custom of the Romans of celebrating the anniversary of the preservation of the Capitol from the Gauls, not only by paying honor to geese, whose cackling gave warning of the enemy's approach, but also by crucifying a dog, as a punishment for not having been more watchful on that occasion. This, however, was really no more absurd than to visit the sins of the fathers on the children, as prescribed by many ancient law-givers, or to decree corruption of blood in persons attainted of treason, as in modern legislation. They are all applications of the barbarous principle which, in primitive society, made the tribe responsible for the acts of each of its members. According to an AngloSaxon law, abolished by King Knut, in case stolen property was found in the house of a thief, his wife and family, even to the child in the cradle, though it had never taken food, were punished as partakers of his guilt. 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." When the prefects Tatian and Proculus fell into disgrace, Lycia, their native land, was stricken from the list of Roman provinces, and its inhabitants were disfranchised and declared incapable of holding any office under the imperial government. So, too, when Joshua discovered some of the spoils 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 tent, and all that he had," were brought into the valley of Achor, and there stoned with stones and burned with fire. At a later period these holocausts of justice were suppressed among the Jews, and no man was put to death save for his own sin. Yet, at the request of the Gibeonites, whom it was desirable toconciliate, David did not scruple to deliver up to them seven of Saul's sons, to be hanged for the evil which their father had done in slaying these foes of Israel. It is as if Bismarck had sought the favor of the French by giving into their hands the descendants of Blucher, to be guillotined on the Place de la Concorde.

The horrible mutilations to which criminals were formerly subjected resulted from an endeavor to administer strictly even-handed justice. What could be fairer than to punish perjury by cutting off the two fingers which the perjurer had held up in taking the oath? It was the popular belief that the fingers of an undetected perjurer would grow out of the grave, seeking retributive amputation, as a plant seeks the light, and that his ghost would never rest until this penalty was inflicted. The Carolina, or criminal code of Charles the Fifth, required that incendiaries should be burned alive; and an old law, cited by Doppler in his Theatrum Poenarum, condemned a man who dug up and removed a boundary-stone to be buried in the earth up to the neck, and to have his head plowed off with a new plow. Ivan Basilowitch, 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 conception of fit punishment that makes the American farmer nail the hawk to his barn door.

That the feeling in which such enactments originated still lies scarcely skindeep under our civilization is evident from the force and suddenness with which it comes to the surface under strong public excitement, as when Cincinnati rioters burned the court-house, because they were dissatisfied with the verdicts of the juries.

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 early Jewish and partly from old German usages and traditions. "If a horse," says Blackstone, "or any other animal, of his 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 deodands." If a man, in driving a cart, tumbles to the ground and loses his life by the wheel passing over him, if a tree falls on a man and causes his death, or if a horse kicks his keeper and kills him, then the wheel, the tree, and the horse are deodands pro rege, and are to be sold for the benefit of the poor.

Blackstone's theories of the origin of deodands are exceedingly vague and unsatisfactory. His statement that they were intended to punish the owner of the forfeited property for his negligence, and also his 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 both incorrect. In most cases the owner was perfectly innocent, and very frequently was the victim of the accident. He suffered only incidentally from a penalty imposed for a wholly different purpose, just as a slaveholder endures 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. In hierarchies the prominent idea was to appease the wrath of God, who otherwise might visit mankind with famine and pestilence and divers retaliatory scourges. For this reason the property of a suicide was deodand. Thus the wife and children of the deceased, the very persons who had already suffered most from his fatal act, were punished for it by being robbed of their rightful inheritance. Yet this was by no means the intention of the law-makers. Ancient legislators uniformly considered a felo de se as a criminal against society and the state, a kind of traitor. The man had enjoyed the support and protection of the civil and political body during his infancy and youth, and, by taking his own life, he shook off the responsibilities and shirked the duties devolving upon him as a member of the commonwealth. This is why self-murder was called felony, and involved forfeiture of goods. Calchas would not permit the body of Ajax, who died by his own hand, to be burned. The Athenians cut off the hand of a suicide and buried the guilty instrument of his death apart from the rest of his body. In some communities all persons over sixty years of age were free to kill themselves, if they wished to do so; and the magistrates of Marseilles, in ancient times, kept on hand a supply of poisons to be given to any citizen who, on due examination, was found to have good and sufficient reasons for committing suicide.

It is true, as Blackstone asserts, that the church claimed deodands as her due, and put the price of them into her 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 mediaeval Europe excommunicated bugs and sent beasts to the stake and to the gallows.
E.P. Evans.