Not only were insects, reptiles and small mammals, such as rats and mice,

legally prosecuted and formally excommunicated, but judicial penalties,

including capital punishment, were also inflicted upon larger quadrupeds.

In the Report and Researches on this subject, published by

Berriat-Saint-Prix in the _Memoirs of the Royal Society of Antiquaries of

France_ (Paris, 1829, Tome VIII. pp. 403-50), numerous extracts from the

original records of such proceedings are given, and also a list of the

kinds of animals thus tried and condemned, extending from the beginning of

the twelfth to the middle of the eighteenth century, and comprising in all

ninety-three cases. This list has been enlarged by D’Addosio so as to

cover the period from 824 to 1845, and to include one hundred and

forty-four prosecutions resulting in the execution or excommunication of

the accused, but even this record is by no means complete. (_Vide_

Appendix F for a still fuller list.)

The culprits are a miscellaneous crew, consisting chiefly of caterpillars,

flies, locusts, leeches, snails, slugs, worms, weevils, rats, mice,

moles, turtle-doves, pigs, bulls, cows, cocks, dogs, asses, mules, mares

and goats. Only those cases are reported in which the accused were found

guilty; of these prosecutions, according to the above-mentioned registers,

two belong to the ninth century, one to the eleventh, three to the

twelfth, two to the thirteenth, six to the fourteenth, thirty-four to the

fifteenth, forty-five to the sixteenth, forty-three to the seventeenth,

seven to the eighteenth and one to the nineteenth century. To this list

might be added other cases, such as the prosecution and malediction of

noxious insects at Glurns in the Tyrol in 1519, at Als in Jutland in 1711,

at Bouranton in 1733, at Lyö in Denmark in 1805-6, and at Pozega in

Slavonia in 1866. In the latter case one of the largest of the locusts was

seized and tried and then put to death by being thrown into the water with

anathemas on the whole species. A few years ago swarms of locusts

devastated the region near Kallipolis in Turkey, and a petition was sent

by the Christian population to the monks of Mount Athos begging them to

bear in solemn procession through the fields the girdle of St. Basilius,

in order to expel the insects. This request was granted, and as the

locusts gradually disappeared, because there was little or nothing left

for them to eat, the orthodox of the Greek Church from the bishop to the

humblest laymen firmly believed or at least maintained that a miracle had

been wrought. Pious Mohammedans exorcise and ostracize locusts and other

harmful insects by reading the Koran aloud in the ravaged fields, as was

recently done at Denislue in Asia Minor with satisfactory results. Also as

late as 1864 at Pleternica in Slavonia, a pig was tried and executed for

having maliciously bitten off the ears of a female infant aged one year.

The flesh of the condemned animal was cut in pieces and thrown to the

dogs, and the head of the family, in which the pig lived, as is the custom

of pigs among the peasants of that country, was put under bonds to provide

a dowry for the mutilated child, so that the loss of her ears might not

prove to be an insuperable obstacle to her marriage. (_Amira_, p. 578.) It

would be incorrect to infer from the tables just referred to that no

judicial punishment of animals occurred in the tenth century or that the

fifteenth, sixteenth, and seventeenth centuries were peculiarly addicted

to such practices. It is well known that during some of the darkest

periods of the Middle Ages and even in later times the registers of the

courts were very imperfectly kept, and in many instances the archives have

been entirely destroyed. It is highly probable, therefore, that the cases

of capital prosecution and conviction of animals, which have been

collected and printed by Berriat-Saint-Prix and others, however thorough

their investigations may have been, constitute only a very small

percentage of those which actually took place.

Beasts were often condemned to be burned alive; and strangely enough, it

was in the latter half of the seventeenth century, an age of comparative

enlightenment, that this cruel penalty seems to have been most frequently

inflicted. Occasionally a merciful judge adhered to the letter of the law

and curbed its barbarous spirit by sentencing the culprit to be slightly

singed and then to be strangled before being committed to the flames.

Sometimes brutes were doomed to be buried alive. Thus we have the receipt

of “Phélippart, sergeant of high justice of the city of Amiens,” for the

sum of sixteen soldi, in payment for services rendered in March 1463, in

“having buried in the earth two pigs, which had torn and eaten with their

teeth a little child in the faubourg of Amiens, who for this cause passed

from life to death (_étoit allé de vie a trépas_).” In 1557, on the 6th of

December, a pig in the Commune of Saint-Quentin was condemned to be

“buried all alive” (_enfoui tout vif_), “for having devoured a little

child in l’hostel de la Couronne.” Again, a century earlier, in 1456, two

pigs were subjected to this punishment, “on the vigil of the Holy Virgin,”

at Oppenheim on the Rhine, for having killed a child. More than three

centuries later the same means were employed for curing murrain, which in

the summer of 1796 had broken out at Beutelsbach in Würtemberg and carried

off many head of cattle. By the advice of a French veterinary doctor, who

was quartered there with the army of General Moreau, the town bull was

buried alive at the crossroads in the presence of several hundred persons.

We are not informed whether this sacrifice proved to be a sufficiently

“powerful medicine” to stay the epizoötic plague; the noteworthy fact is

that the superstitious rite was prescribed and performed, not by an Indian

magician or an African sorcerer, but by an official of the French

republic.

Animals are said to have been even put to the rack in order to extort

confession. It is not to be supposed that, in such cases, the judge had

the slightest expectation that any confession would be made; he wished

merely to observe all forms prescribed by the law, and to set in motion

the whole machinery of justice before pronouncing judgment. The statement

of a French writer, Arthur Mangin (_L’Homme et la Bête._ Paris, 1872, p.

344), that “the cries which they uttered under torture were received as

confessions of guilt,” is absurd. No such notion was ever entertained by

their tormentor. “The question,” which under the circumstances would seem

to be only a wanton and superfluous act of cruelty, was nevertheless an

important element in determining the final decision, since the sentence of

death could be commuted into banishment, whipping, incarceration or some

milder form of punishment, provided the criminal had not confessed his

guilt under torture. The use of the rack might be, therefore, a merciful

means of escaping the gallows. Appeals were sometimes made to higher

tribunals and the judgments of the lower courts annulled or modified. In

one instance a sow and a she-ass were condemned to be hanged; on appeal,

and after a new trial, they were sentenced to be simply knocked on the

head. Occasionally an appeal led to the acquittal of the accused.

In 1266, at Fontenay-aux-Roses, near Paris, a pig convicted of having

eaten a child was publicly burned by order of the monks of Sainte

Geneviève. In 1386, the tribunal of Falaise sentenced a sow to be mangled

and maimed in the head and forelegs, and then to be hanged, for having

torn the face and arms of a child and thus caused its death. Here we have

a strict application of the _lex talionis_, the primitive retributive

principle of taking an eye for an eye and a tooth for a tooth. As if to

make the travesty of justice complete, the sow was dressed in man’s

clothes and executed on the public square near the city-hall at an expense

to the state of ten sous and ten deniers, besides a pair of gloves to the

hangman. The executioner was provided with new gloves in order that he

might come from the discharge of his duty, metaphorically at least, with

clean hands, thus indicating that, as a minister of justice, he incurred

no guilt in shedding blood. He was no common pig-killer, but a public

functionary, a “master of high works” (_maître des hautes œuvres_), as he

was officially styled. (_Vide_ Appendix G.)

We may add that the west wall of the south branch of the transept in the

Church of the Holy Trinity (_Sainte-Trinité_) at Falaise in Normandy was

formerly adorned with a fresco-painting of this execution, which is

mentioned in _Statistique de Falaise_ (1827, t. I. 83), and more fully

described by l’Abbé Pierre-Gilles Langevin, in his _Recherches Historiques

sur Falaise_ (1814, p. 146). In a Supplement (p. 12) to this work,

published several years later, the Abbé states that, about the year 1820,

the entire church, including the fresco, was whitewashed, so that the

picture has since then been invisible, and, so far as can be ascertained,

no engraving or other copy of it has ever been made. Unfortunately, too,

as the same writer informs us, _la châsse de la bannière_ (banner-holder)

was fastened to the wall of the church on this very spot, thus covering

and permanently destroying at least a portion of the painting.

In 1394, a pig was found guilty of “having killed and murdered a child in

the parish of Roumaygne, in the county of Mortaing, for which deed the

said pig was condemned to be haled and hanged by Jehan Petit, lieutenant

of the bailiff.” The work was really done by the hangman (_pendart_),

Jehan Micton, who received for his services the sum of “fifty souls

tournois.” (_Vide_ Appendix H.) In another case the deputy bailiff of

Mantes and Meullant presented a bill, dated March 15, 1403, which

contained the following items of expense incurred for the incarceration

and execution of an infanticide sow:

“Cost of keeping her in jail, six sols parisis.

“Item, to the master of high works, who came from Paris to Meullant to

perform the said execution by comand and authority of the said

bailiff, our master, and of the procurator of the king, fifty-four

sols parisis.

“Item, for a carriage to take her to justice, six sols parisis.

“Item, for cords to bind and hale her, two sols eight deniers parisis.

“Item, for gloves, two deniers parisis.”

This account, which amounted in all to sixty-nine sols eight deniers

parisis, was examined and approved by the auditor of the court, De

Baudemont, who affixed to it his own seal with signature and paraph and

“in further confirmation and approbation thereof caused it to be sealed

with the seal of the Chatellany of Meullant, on the 15th day of March in

the year 1403.” (See Appendix I.) In the following year a pig was executed

at Rouvres for the same offence.

Brutes and human criminals were confined in the same prison and subjected

to the same treatment. Thus “Toustain Pincheon, keeper of the prisons of

our lord the king in the town of Pont de Larche,” acknowledges the

receipt, “through the hand of the honourable and wise man, Jehan Monnet,

sheriff (_vicomte_) of the said town, of nineteen sous six deniers

tournois for having found the king’s bread for the prisoners detained, by

reason of crime, in the said prison.” The jailer gives the names of the

persons in custody, and concludes the list with “Item, one pig, conducted

into the said prison and kept there from the 24th of June, 1408,

inclusive, till the 17th of the following July,” when it was hanged “for

the crime of having murdered and killed a little child” (_pource que

icellui porc avoit muldry et tue ung pettit enfant_). For the pig’s board

the jailer charged two deniers tournois a day, the same as for boarding a

man, thus placing the porker, even in respect to its maintenance, on a

footing of perfect equality with the human prisoners. He also puts into

the account “ten deniers tournois for a rope, found and furnished for the

purpose of tying the said pig that it might not escape.” The correctness

of the charges is certified to by “Jean Gaulvant, sworn tabellion of our

lord the king in the viscounty of Pont de Larche.” (_Vide_ Appendix J.)

Again in 1474, the official of the Bishop of Lausanne sentenced a pig to

be hanged “until death ensueth,” for having devoured an infant in its

cradle in the vicinity of Oron, and to remain suspended from the gallows

for a certain length of time as a warning to wrong-doers. It is also

expressly stated that, in 1585, the body of a pig, which had been executed

for the murder of a child at Saint-Omer, at the hostelry of Mortier d’Or,

was left hanging “for a long space” on a gibbet in a field near the

highway. (Derheims: _Histoire de Saint-Omer_, p. 327.) A little later a

similar spectacle met the eyes of Guy Pape, as he was going to

Châlons-sur-Marne in Champagne, to pay homage to King Henry IV. In his own

words: _dum ibam ad civitatem Cathalani in Campania ad Regem tunc ibi

existentem, vidi quemdam porcum, in furcis suspensum, qui dicebatur

occidisse quemdam puerum_. (Quaestio CCXXXVIII: _De poena bruti

delinquentis_. Lugduni, MDCX.)

On the 5th of September, 1379, as two herds of swine, one belonging to the

commune and the other to the priory of Saint-Marcel-le-Jeussey, were

feeding together near that town, three sows of the communal herd, excited

and enraged by the squealing of one of the porklings, rushed upon Perrinot

Muet, the son of the swinekeeper, and before his father could come to his

rescue, threw him to the ground and so severely injured him that he died

soon afterwards. The three sows, after due process of law, were condemned

to death; and as both the herds had hastened to the scene of the murder

and by their cries and aggressive actions showed that they approved of the

assault, and were ready and even eager to become _participes criminis_,

they were arrested as accomplices and sentenced by the court to suffer the

same penalty. But the prior, Friar Humbert de Poutiers, not willing to

endure the loss of his swine, sent an humble petition to Philip the Bold,

then Duke of Burgundy, praying that both the herds, with the exception of

the three sows actually guilty of the murder, might receive a full and

free pardon. The duke lent a gracious ear to this supplication and ordered

that the punishment should be remitted and the swine released. (_Vide_

Appendix K.)

A peculiar custom is referred to in the _procès verbal_ of the prosecution

of a porker for infanticide, dated May 20, 1572. The murder was committed

within the jurisdiction of the monastery of Moyen-Montier, where the case

was tried and the accused sentenced to be “hanged and strangled on a

gibbet.” The prisoner was then bound with a cord and conducted to a cross

near the cemetery, where it was formally given over to an executioner from

Nancy. “From time immemorial,” we are told, “the justiciary of the Lord

Abbot of Moyen-Montier has been accustomed to consign to the provost of

Saint-Diez, near this cross, condemned criminals, wholly naked, that they

may be executed; but inasmuch as this pig is a brute beast, he has

delivered the same bound with a cord, without prejudicing or in any wise

impairing the right of the Lord Abbot to deliver condemned criminals

wholly naked.” The pig must not wear a rope unless the right to do without

it be expressly reserved, lest some human culprit, under similar

circumstances, should claim to be entitled to raiment.

“’Twill be recorded for a precedent;

And many an error, by the same example

Will rush into the state: it cannot be.”

In the case of a mule condemned to be burned alive together with a man

guilty of buggery, at Montpellier, in 1565, as the quadruped was vicious

and inclined to kick (_vitiosus et calcitrosus_), the executioner cut off

its feet before consigning it to the flames. This mutilation was an

arbitrary and extra-judicial act, dictated solely by considerations of

personal convenience. Hangmen often indulged in capricious and

supererogatory cruelty in the exercise of their patibulary functions, and

mediæval as well as later writers on criminal jurisprudence repeatedly

complain of this evil and call for reform. Thus Damhouder, in his _Rerum

Criminalium Praxis_ (_cap. de carnifice_, p. 234), urges magistrates to be

more careful in selecting persons for this important office, and not to

choose evil-doers, “assiduous gamblers, public whoremongers, malicious

back-biters, impious blasphemers, assassins, thieves, murderers, robbers,

and other violators of the law as vindicators of justice.” Indeed, these

hardened wretches sometimes took the law into their own hands. For

example, on the 9th of June, 1576, at Schweinfurt in Franconia, a sow,

which had bitten off the ear and torn the hand of a carpenter’s child,

was given into custody, whereupon the hangman, without legal authority,

took it to the gallows-green (Schindrasen) and there “hanged it publicly

to the disgrace and detriment of the city.” For this impudent usurpation

of judiciary powers Jack Ketch was forced to flee and never dared return.

Hence arose the proverbial phrase Schweinfurter Sauhenker (Schweinfurt

sow-hangman), used to characterize a low and lawless ruffian and vile

fellow of the baser sort. It was not the mere killing of the sow, but the

execution without a judicial decision, the insult and contempt of the

magistracy and the judicatory by arrogating their functions, that excited

the public wrath and official indignation.

Buggery (_offensa cujus nominatio crimen est_, as it is euphemistically

designated in legal documents) was uniformly punished by putting to death

both parties implicated, and usually by burning them alive. The beast,

too, is punished and both are burned (_punitur etiam pecus et ambo

comburuntur_), says Guillielmus Benedictinus, a writer on law, who lived

about the end of the fourteenth century. Thus, in 1546, a man and a cow

were hanged and then burned by order of the parliament of Paris, the

supreme court of France. In 1466, the same tribunal condemned a man and a

sow to be burned at Corbeil. Occasionally interment was substituted for

incremation. Thus in 1609, at Niederrad, a man and a mare were executed

and their bodies buried in the same carrion-pit. On the 12th of September,

1606, the mayor of Loens de Chartres, on complaint of the dean, canons,

and chapter of the cathedral of Chartres, condemned a man named Guillaume

Guyart to be “hanged and strangled on a gibbet in reparation and

punishment of sodomy, whereof the said Guyart is declared accused,

attainted and convicted.” A bitch, his accomplice, was sentenced to be

knocked on the head (_assommée_) by the executioner of high justice and

“the dead bodies of both to be burned and reduced to ashes.” It is

furthermore added that if the said Guyart, who seems to have

contumaciously given leg-bail, cannot be seized and apprehended in person,

the sentence shall, in his case, be executed in effigy by attaching his

likeness in painting to the gibbet. It was also decreed that all the

property of the absconder should be confiscated and the sum of one hundred

and fifty livres be adjudged to the plaintiffs, out of which the costs of

the trial were to be defrayed. (_Vide_ Appendix L.) This disgusting crime

appears to have been very common; at least Ayrault in his _Ordre

Judiciaire_, published in 1606, states that he has many times

(_multoties_) seen brute beasts put to death for this cause. In his

_Magnalia Christi Americana_ (Book VI, (III), London, 1702) Cotton Mather

records that “on June 6, 1662, at New Haven, there was a most

unparalleled wretch, one Potter by name, about sixty years of age,

executed for damnable Bestialities.” He had been a member of the Church

for twenty years and was noted for his piety, “devout in worship, gifted

in prayer, forward in edifying discourse among the religious, and zealous

in reforming the sins of other people.” Yet this monster, who is described

as possessed by an unclean devil, “lived in most infandous Buggeries for

no less than fifty years together, and now at the gallows there were

killed before his eyes a cow, two heifers, three sheep and two sows, with

all of which he had committed his brutalities. His wife had seen him

confounding himself with a bitch ten years before; and he then excused

himself as well as he could, but conjured her to keep it secret.” He

afterwards hanged the bitch, probably as a sort of vicarious atonement.

According to this account he must have begun to practice sodomy when he

was ten years of age, a vicious precocity which the author would doubtless

explain on the theory of diabolical possession. In 1681, a habitual

sodomite, who had been wont to defile himself with greyhounds, cows,

swine, sheep and all manner of beasts, was brought to trial together with

a mare, at Wünschelburg in Silesia, where both were burned alive. In 1684,

on the 3rd of May, a bugger was beheaded at Ottendorf, and the mare, his

partner in crime, knocked on the head; it was expressly enjoined that in

burning the bodies the man’s should lie underneath that of the beast. In

the following year, fourteen days before Christmas, a journeyman tailor,

“who had committed the unnatural deed of carnal lewdness with a mare,” was

burned at Striga together with the mare.

For the same offence Benjamin Deschauffour was condemned, May 25, 1726, to

be tied to a stake and there burned alive “together with the minutes of

the trial;” his ashes were strewed to the wind and his estates seized and,

after the deduction of a fine of three thousand livres, confiscated to the

benefit of his Majesty. In the case of Jacques Ferron, who was taken in

the act of coition with a she-ass at Vanvres in 1750, and after due

process of law, sentenced to death, the animal was acquitted on the ground

that she was the victim of violence and had not participated in her

master’s crime of her own free-will. The prior of the convent, who also

performed the duties of parish priest, and the principal inhabitants of

the commune of Vanvres signed a certificate stating that they had known

the said she-ass for four years, and that she had always shown herself to

be virtuous and well-behaved both at home and abroad and had never given

occasion of scandal to any one, and that therefore “they were willing to

bear witness that she is in word and deed and in all her habits of life a

most honest creature.” This document, given at Vanvres on Sept. 19, 1750,

and signed by “Pintuel Prieur Curé” and the other attestors, was produced

during the trial and exerted a decisive influence upon the judgment of the

court. As a piece of exculpatory evidence it may be regarded as unique in

the annals of criminal prosecutions.

The Carolina or criminal code of the emperor Charles V., promulgated at

the diet of Ratisbon in 1532, ordained that sodomy in all its forms and

degrees should be punished with death by fire “according to common custom”

(“_so ein_ Mensch mit einem Viehe, Mann mit Mann, Weib mit Weib,

Unkeuschheit treibet, die haben auch das Leben verwircket, und man soll

sie der gemeinen Gewohnheit nach mit dem Feuer vom Leben zum Tode

richten.” Art. 116.), but stipulated that, if for any reason the

punishment of the sodomite should be mitigated, the same measure of mercy

should be shown to the beast. This principle is reaffirmed by Benedict

Carpzov in his _Pratica Nova Rerum Criminalium_ (Wittenberg, 1635), in

which he states that “if for any cause the sodomite shall be punished only

with the sword, then the beast participant of his crime shall not be

burned, but shall be struck dead and buried by the knacker or field-master

(_Caviller oder Feldmeister_).” The bugger was also bound to compensate

the owner for the loss of the animal, or, if he left no property, the

value must be paid out of the public treasury. “If the criminal act was

not fully consummated, then the human offender was publicly scourged and

banished, and the animal, instead of being killed, was put away out of

sight in order that no one might be scandalized thereby” [Jacobi Döpleri,

_Theatrum Poenarum Suppliciorum et Executionum Criminalium, oder

Schau-Platz derer Leibes- und Lebens-Straffen_, etc. Sondershausen, 1693,

II. p. 151.]

All Christian legislation on this subject is simply an application and

amplification of the Mosaic law as recorded in Exodus xxii. 19 and

Leviticus xx. 13-16, just as the cruel persecutions and prosecutions for

witchcraft in mediæval and modern times derive their authority and

justification from the succinct and peremptory command: “Thou shalt not

suffer a witch to live.” In the older criminal codes two kinds or degrees

of sodomy are mentioned, _gravius_ and _gravissimum_; the former being

condemned in the thirteenth verse and the latter in the fifteenth and

sixteenth verses of Leviticus. Döpler tells some strange stories of the

results of the _peccatum gravissimum_; and the fact that a sober writer on

jurisprudence could believe and seriously narrate such absurdities,

furnishes a curious contribution to the history of human credulity.

It is rather odd that Christian law-givers should have adopted a Jewish

code against sexual intercourse with beasts and then enlarged it so as to

include the Jews themselves. The question was gravely discussed by

jurists, whether cohabitation of a Christian with a Jewess or _vice versa_

constitutes sodomy. Damhouder (_Prax. Rer. Crim._ c., 96, n. 48) is of the

opinion that it does, and Nicolaus Boër (Decis., 136, n. 5) cites the case

of a certain Johannes Alardus or Jean Alard, who kept a Jewess in his

house in Paris and had several children by her; he was convicted of sodomy

on account of this relation and burned, together with his paramour, “since

coition with a Jewess is precisely the same as if a man should copulate

with a dog” (Döpl., _Theat._, II. p. 157). Damhouder, in the work just

cited, includes Turks and Saracens in the same category, “inasmuch as such

persons in the eye of the law and our holy faith differ in no wise from

beasts.”

But to resume the subject of the perpetration of felonious homicide by

animals, on the 10th of January, 1457, a sow was convicted of “murder

flagrantly committed on the person of Jehan Martin, aged five years, the

son of Jehan Martin of Savigny,” and sentenced to be “hanged by the hind

feet to a gallows-tree (_a ung arbre esproné_).” Her six sucklings, being

found stained with blood, were included in the indictment as accomplices;

but “in lack of any positive proof that they had assisted in mangling the

deceased, they were restored to their owner, on condition that he should

give bail for their appearance, should further evidence be forthcoming to

prove their complicity in their mother’s crime.” Above three weeks later,

on the 2nd of February, to wit “on the Friday after the feast of Our Lady

the Virgin,” the sucklings were again brought before the court; and, as

their owner, Jehan Bailly, openly repudiated them and refused to be

answerable in any wise for their future good conduct, they were declared,

as vacant property, forfeited to the noble damsel Katherine de Barnault,

Lady of Savigny. This case is particularly interesting on account of the

completeness with which the _procès verbal_ has been preserved. (See

Appendix M.)

Sometimes a fine was imposed upon the owner of the offending animal, as

was the case with Jehan Delalande and his wife, who were condemned, on the

18th of April, 1499, by the bailiff of the Abbey of Josaphat near

Chartres, to pay a fine of eighteen francs and to be confined in prison

until this sum should be paid, “on account of the murder of a child named

Gilon, aged five and a half years or thereabouts, perpetrated by a porker,

aged three months or thereabouts.” The pig was condemned to be “hanged and

executed by justice.” The owners were punished because they were supposed

to have been culpably negligent of the child, who had been confided to

their care and keeping, and not because they had, in the eye of the law,

any proprietary responsibility for the infanticidal animal. The mulct

implied remissness on their part as guardians or foster-parents of the

infant. In general, as we have seen, the owner of the blood-guilty beast

was considered wholly blameless and sometimes even remunerated for his

loss. (_Vide_ Appendix N.)

According to the laws of the Bogos, a pastoral and nominally Christian

tribe of Northern Abyssinia, a bull, cow or any other animal which kills a

man is put to death; the owner of the homicidal beast is not held in any

wise responsible for its crime, nevertheless he practically incurs a

somewhat heavy penalty by not receiving any compensation for the loss of

his property. This exercise of justice is quite common among the tribes of

Central Africa. In Montenegro, horses, oxen and pigs have been recently

tried for homicide and put to death, unless the owner redeemed them by

paying a ransom.

On the 14th of June, 1494, a young pig was arrested for having “strangled

and defaced a young child in its cradle, the son of Jehan Lenfant, a

cowherd on the fee-farm of Clermont, and of Gillon his wife,” and

proceeded against “as justice and reason would desire and require.”

Several witnesses were examined, who testified “on their oath and

conscience” that “on the morning of Easter Day, as the father was guarding

cattle and his wife Gillon was absent in the village of Dizy, the infant

being left alone in its cradle, the said pig entered during the said time

the said house and disfigured and ate the face and neck of the said

child, which, in consequence of the bites and defacements inflicted by the

said pig, departed this life (_de ce siècle trépassa_).” The sentence

pronounced by the judge was as follows, “We, in detestation and horror of

the said crime, and to the end that an example may be made and justice

maintained, have said, judged, sentenced, pronounced and appointed, that

the said porker, now detained as a prisoner and confined in the said

abbey, shall be by the master of high works hanged and strangled on a

gibbet of wood near and adjoinant to the gallows and high place of

execution belonging to the said monks, being contiguous to their fee-farm

of Avin.” The crime was committed “on the fee-farm of

Clermont-lez-Montcornet, appertaining in all matters of high, mean and

base justice to the monks of the order of Premonstrants,” and the

prosecution was conducted by “Jehan Levoisier, licenciate in law, the

grand mayor of the church and monastery of St. Martin de Laon of the order

of Premonstrants and the aldermen of the same place.” The plaintiffs were

the friars, who preferred charges against the pig and procured the

evidence necessary to its conviction. (_Vide_ Appendix O.)

In 1394, a pig was hanged at Mortaign for having sacrilegiously eaten a

consecrated wafer; and in a case of infanticide, it is expressly stated in

the plaintiff’s declaration that the pig killed the child and ate of its

flesh, “although it was Friday,” and this violation of the _jejunium

sextae_, prescribed by the Church, was urged by the prosecuting attorney

and accepted by the court as a serious aggravation of the porker’s

offence.

Nothing would be easier than to multiply examples of this kind.

Infanticidal swine were hanged in 1419 at Labergement-le-Duc, in 1420 at

Brochon, in 1435 at Trochères, and in 1490 at Abbeville; the

last-mentioned execution took place “under the auspices of the aldermanity

and with the tolling of the bells.” It was evidently regarded as a very

solemn affair. The records of mediæval courts, the chronicles of mediæval

cloisters, and the archives of mediæval cities, especially such as were

under episcopal sovereignty and governed by ecclesiastical law, are full

of such cases. The capital punishment of a dumb animal for its crimes

seems to us so irrational and absurd, that we can hardly believe that sane

and sober men were ever guilty of such folly; yet the idea was quite

familiar to our ancestors even in Shakespeare’s day, in the brilliant

Elizabethan age of English literature, as is evident from a passage in

Gratiano’s invective against Shylock:

“thy currish spirit

Govern’d a wolf, who, hang’d for human slaughter,

Even from the gallows did his fell soul fleet,

And, whilst thou lay’st in thy unhallow’d dam,

Infus’d itself in thee; for thy desires

Are wolfish, bloody, starv’d, and ravenous.”

That such cases usually came under the jurisdiction of monasteries and

so-called spiritualities and were tried by their peculiarly organized

tribunals, will not seem strange, when we remember that these religious

establishments were great landed proprietors and at one time owned nearly

one-third of all real estate in France. The frequency with which pigs were

brought to trial and adjudged to death, was owing, in a great measure, to

the freedom with which they were permitted to run about the streets and to

their immense number. The fact that they were under the special protection

of St. Anthony of Padua conferred upon them a certain immunity, so that

they became a serious nuisance, not only endangering the lives of

children, but also generating and disseminating diseases. It is recorded

that in 1131, as the Crown Prince Philippe, son of Louis the Gross, was

riding through one of the principal streets of Paris, a boar, belonging to

an abbot, ran violently between the legs of his horse, so that the prince

fell to the ground and was killed. In some cities, like Grenoble in the

sixteenth century, the authorities treated them very much as we do mad

dogs, empowering the carnifex to seize and slay them whenever found at

large. On Nov. 20, 1664, the municipality of Naples passed an ordinance

that the pigs, which frequented the streets and piazzas to the detriment

and danger of the inhabitants, should be removed from the city to a wood

or other uninhabited place or be slaughtered within twelve days on pain

of the penalties already prescribed and threatened, probably in the order

issued on Nov. 3, of the same year. It would seem, however, that these

ordinances did not produce the desired effect, or soon fell into abeyance,

since another was promulgated four years later, on Nov. 29, 1668,

expelling the pigs from the city and calling attention to the fact that

they corrupted the atmosphere and thus imperiled the public health.

Sanitary considerations and salutary measures of this kind were by no

means common in the Middle Ages, but were a gradual outgrowth of the

spirit of the Renaissance. It was with the revival of letters that men

began to love cleanliness and to appreciate its hygienic value as well as

its æsthetic beauty. Little heed was paid to such things in the “good old

times” of earlier date, when the test of holiness was the number of years

a person went unwashed, and the growth of the soul in sanctity was

estimated by the thickness of the layers of filth on the body, as the age

of the earth is determined by the strata which compose its crust.

The freedom of the city almost universally enjoyed by mediæval swine is

still maintained by their descendants in many towns of Southern Italy and

Sicily, where they ramble at will through the streets or assemble in

council before the palace of the prefect (cf. D’Addosio, _Bestie

Delinquenti_, pp. 23-5).

In the latter half of the sixteenth century the tribunals began to take

preventive measures against the public nuisance by holding the inhabitants

responsible for the injuries done to individuals by swine running at large

and by threatening with corporal as well as pecuniary punishment all

persons who left “such beasts without a good and sure guard.” Thus it is

recorded that on the 27th of March, 1567, “a sow with a black snout,” “for

the cruelty and ferocity” shown in murdering a little child four months

old, having “eaten and devoured the head, the left hand and the part above

the right breast of the said infant,” was condemned to be “exterminated to

death, and to this end to be hanged by the executioner of high justice on

a tree within the metes and bounds of the said judicature on the highway

from Saint-Firmin to Senlis.” The court of the judicatory of Senlis, which

pronounced this sentence on complaint of the procurator of the seigniory

of Saint-Nicolas, also forbade all the inhabitants and subjects of the

said seignioralty to permit the like beasts to go unguarded on pain of an

arbitrary fine and of corporal chastisement in default of payment. (_Vide_

Appendix P.)

But although pigs appear to have been the principal culprits, especially

as regard infanticide, other quadrupeds were frequently called to answer

for similar crimes. Thus, in 1314, a bull belonging to a farmer in the

village of Moisy, escaped into the highway, where it attacked a man and

injured him so severely that he died a few hours afterwards. The ferocious

animal was seized and imprisoned by the officers of Charles, Count of

Valois, and after being tried and convicted was sentenced to be hanged.

This judgment of the court was confirmed by the Parliament of Paris and

the execution took place at Moisy-le-Temple on the common gallows. An

appeal based upon the incompetency of the court was then made by the

Procurator of the Order of the Hospital of the Ville de Moisy to the

Parliament of La Chandeleur, which decided that the bull had met with its

deserts and been justly put to death, but that the Count of Valois had no

jurisdiction on the territory of Moisy, and his officials no power to

institute proceedings in this case. The sentence was right in equity, but

judicially and technically wrong, and could not therefore serve as a

precedent.

There is also extant an order issued by the magistracy of Gisors in 1405,

commanding payment to be made to the carpenter who had erected the

scaffold on which an ox had been executed “for its demerits.” Again on the

16th of May, 1499, the judicial authorities of the Cistercian Abbey of

Beaupré near Beauvais condemned a red bull to be “executed until death

inclusively,” for having “killed with furiosity a lad of fourteen or

fifteen years of age, named Lucas Dupont,” who was employed in tending the

horned cattle of the farmer Jean Boullet. (_Vide_ Appendix Q.) In 1389,

the Carthusians of Dijon caused a horse to be condemned to death for

homicide; and as late as 1697 a mare was burned by the decision and decree

of the Parliament of Aix, which, it must be remembered, was not a

legislative body, but a supreme court of judicature, thus differing in its

functions from the States General, the only law-making and representative

assembly in France, that may be said to have corresponded in the slightest

degree to the modern conception of a parliament.

In 1474, the magistrates of Bâle sentenced a cock to be burned at the

stake “for the heinous and unnatural crime of laying an egg.” The _auto da

fé_ was held on a height near the city called the Kohlenberg, with as

great solemnity as would have been observed in consigning a heretic to the

flames, and was witnessed by an immense crowd of townsmen and peasants.

The statement made by Gross in his _Kurze Basler Chronik_, that the

executioner on cutting open the cock found three more eggs in him, is of

course absurd; we have to do in this case not with a freak of nature, but

with the freak of an excited imagination tainted with superstition. Other

instances of this kind have been recorded, one in the Swiss Prättigau as

late as 1730, although in many cases the execution of the gallinaceous

malefactor was more summary and less ceremonious than at Bâle.

The _oeuf coquatri_ was supposed to be the product of a very old cock and

to furnish the most active ingredient of witch ointment. When hatched by a

serpent or a toad, or by the heat of the sun it brought forth a cockatrice

or basilisk, which would hide in the roof of the house and with its

baneful breath and “death-darting eye” destroy all the inmates. Many

naturalists believed this fable as late as the eighteenth century, and in

1710 the French savant Lapeyronie deemed this absurd notion worthy of

serious refutation, and read a paper, entitled “Observation sur les petits

oeufs de poule sans jaune, que l’on appelle vulgairement oeufs de Coq,”

before the Academy of Sciences in order to prove that cocks never lay and

that the small and yolkless eggs attributed to them owe their peculiar

shape and condition to a disease of the hen resulting in a hydropic

malformation of the oviduct. A farmer brought him several specimens of

this sort, somewhat larger than a pigeon’s egg, and assured him that they

had been laid by a cock in his own barnyard. On opening one of them, M.

Lapeyronie was surprised to find only a very slight trace of the yolk

resembling “a small serpent coiled.” He now began to suspect that the cock

might be an hermaphrodite, but on killing and dissecting it discovered

nothing in support of this theory, the internal organs being all perfectly

healthy and normal. But although the unfortunate chanticleer had fallen a

victim to the scientific investigation of a popular delusion, the eggs in

question continued to be produced, until the farmer by carefully watching

the fowls detected the hen that laid them. The dissection showed that the

pressure of a bladder of serous fluid against the oviduct had so

contracted it, that the egg in passing had the yolk squeezed out of it,

leaving merely a yellowish discoloration that looked like a worm. Another

peculiarity of this hen was that she crowed like “a hoarse cock” (_un coq

enroué_), only more violently; a phenomenon also a source of terror to the

superstitious, but ascribed by M. Lapeyronie to the same morbid state of

the oviduct and the consequent pain caused by the passage of the egg

(_Mémoires de l’Académie de Sciences._ Paris, 1710, pp. 553-60.)

A Greek physiologus of the twelfth century, written in verse, calls the

animal hatched from the egg of an old cock επτεινάρια, a name which would

imply some sort of winged creature. It was “sighted like the basilisk,”

and endowed also in other respects with the same fatal qualities.

In the case of a valuable animal, such as an ox or a horse, the severity

of retaliatory justice was often tempered by economical considerations and

the culprit confiscated, but not capitally punished. Thus as early as the

twelfth century it is expressly stated that “it is the law and custom in

Burgundy that if an ox or a horse commit one or several homicides, it

shall not be condemned to death, but shall be taken by the Seignior

within whose jurisdiction the deed was perpetrated or by his servitors and

be confiscated to him and shall be sold and appropriated to the profit of

the said Seignior; but if other beasts or Jews do it, they shall be hanged

by the hind feet” (Coustumes et Stilles de Bourgoigne, § 197 in Giraud:

_Essai sur l’Histoire du Droit Francais_, II. p. 302; quoted by Amira). It

was a cruel irony of the law that conferred upon pigs and Jews a perfect

equality of rights by sending them both to the scaffold.

Animals were put on a par with old crones in bearing their full share of

persecution during the witchcraft delusion. Pigs suffered most in this

respect, since they were assumed to be peculiarly attractive to devils,

and therefore particularly liable to diabolical possession, as is evident

from the legion that went out of the lunatic and were permitted, at their

own request, to enter into the Gadarene herd of swine. But Beelzebub did

not disdain to become incarnate in all sorts of creatures, such as cats,

dogs of high and low degree, wolves, night-birds and indeed in any beast,

especially if it chanced to be black. Goats, it is well known, were not a

too stinking habitation for him, and even to dwell in skunks he did not

despise. The perpetual smell of burning sulphur in his subterranean abode

may render him proof against any less suffocating form of stench. The

Bible represents Satan as going about as a roaring lion; and according to

the highest ecclesiastical authorities he has appeared visibly as a raven,

a porcupine, a toad and a gnat. Indeed, there is hardly a living creature

in which he has not deigned to disport himself from a blue-bottle to a

bishop, to say nothing of his “appearing invisibly at times” (_aliquando

invisibiliter apparens_), if we may believe what the learned polyhistor

Tritheim tells of his apparitions. As all animals were considered

embodiments of devils, it was perfectly logical and consistent that the

Prince of Darkness should reveal himself to mortal ken as a mongrel

epitome of many beasts--snake, cat, dog, pig, ape, buck and horse each

contributing some characteristic part to his incarnation.

It was during the latter half of the seventeenth century, when, as we have

seen, criminal prosecutions of animals were still quite frequent and the

penalties inflicted extremely cruel, that Racine caricatured them in Les

Plaideurs, where a dog is tried for stealing and eating a capon. Dandin

solemnly takes his seat as judge, and declares his determination to “close

his eyes to bribes and his ears to brigue.” Petit Jean prosecutes and

L’Intime appears for the defence. Both address the court in florid and

high-flown rhetoric and display rare erudition in quoting Aristotle,

Pausanias and other ancient as well as modern authorities. The accused is

condemned to the galleys. Thereupon the counsel for the defendant brings

in a litter of puppies, _pauvres enfants qu’on veut rendre orphelins_, and

appeals to the compassion and implores the clemency of the judge. Dandin’s

feelings are touched, for he, too, is a father; as a public officer, also,

he is moved by the economical consideration of the expense to the state of

keeping the offspring of the culprit in a foundling hospital, in case they

should be deprived of paternal support. To the contemporaries of Racine

the representation of a scene like this had a significance, which we fail

to appreciate. It strikes us as simply farcical and not very funny; to

them it was a mirror reflecting a characteristic feature of the time and

ridiculing a grave judicial abuse, as Cervantes, a century earlier,

burlesqued the institution of chivalry in the adventures of Don Quixote.

(See Appendix R.)

_Lex talionis_ is the oldest kind of law and the most deeply rooted in

human nature. To the primitive man and the savage, tit for tat is an

ethical axiom, which it would be thought immoral as well as cowardly not

to put into practice. No principle is held more firmly or acted upon more

universally than that of literal and exact retributions in man’s dealings

with his fellows--the iron rule of doing unto others the wrongs which

others have done unto you. Hebrew legislation demanded “life for life, eye

for eye, tooth for tooth, hand for hand, foot for foot, burning for

burning, wound for wound, stripe for stripe.” An old Anglo-Saxon law made

this retaliatory principle of _membrum pro membro_ the penalty of all

crimes of personal violence, including rape; even a lascivious eye was to

be plucked out, in accordance with the doctrine that “whosoever looketh on

a woman to lust after her hath committed adultery with her already in his

heart.” [“Corruptor puniatur in eo in quo deliquat: oculos igitur amittat,

propter aspectum decoris, quo virginem concupivit; amittat et testiculos,

qui calorem stupri induxerunt.” Cf. Bracton, 147_b_; Reeves, I. 481.] This

was believed to be God’s method of punishment, smiting with disease or

miraculously destroying the bodily organs, which were the instruments of

sin. Thus Stengelius (_De Judiciis Divinis_, II. 26, 27) records how a

thunderbolt was hurled by the divine hand in such a manner as to castrate

a lascivious priest: _impurus et saltator sacerdos fulmine castratus_. The

same sort of retributive justice was recognized by the Institutes of Manu,

which punished a thief by the amputation or mutilation of his fingers.

In the covenant with Noah it was declared that human blood should be

required not only “at the hand of man,” but also “at the hand of every

beast;” and it was subsequently enacted, in accordance with this

fundamental principle, that “if an ox gore a man or a woman that they die,

then the ox shall be surely stoned, and his flesh shall not be eaten.” To

eat a creature which had become the peer of man in blood-guiltiness and in

judicial punishment, would savour of anthropophagy. This decision of

Jewish law-givers as to the use of the flesh of otherwise edible animals

condemned to death for crime has nearly always been followed. Thus when,

in 1553, several swine were executed for child-murder at Frankfort on the

Main, their carcasses, although doubtless as good pork as could be found

in the shambles, were thrown into the river. Usually, however, they were

buried under the gallows or in whatever spot was set apart for interring

the dead bodies of human criminals. At Ghent, however, in 1578, after

judicial sentence of death had been pronounced on a cow, she was

slaughtered and her flesh sold as butcher’s meat, half of the proceeds of

the sale being given as compensation to the injured party and the other

half to the city treasury for distribution among the poor; but her head

was struck off and stuck on a stake near the gallows, to indicate that she

had been capitally punished. The thrifty Flemings did not permit the moral

depravity to taint the material substance of the bovine culprit and impair

the excellence of the beef.

On the other hand, the Law Faculty of the University of Leipsic decided

that a cow, which had pushed a woman and thereby caused her death at

Machern in Saxony, July 20, 1621, should be taken to a secluded and

barren place and there killed and buried “unflayed.” In this case the

flesh of the homicidal animal was not to be eaten nor the hide converted

into leather. (_Vide_ Appendix S.)

In this connection it may be interesting to mention a decision of the

Ecclesiastical Court (_geistlicher Convent_) of Berne, given in 1666 and

recorded in Türler’s _Strafrechtliche Gutachten des geistlichen Konvents

der Stadt Bern_ (_Zeitschrift für schweiz._ _Strafrecht_, Bd. III., Heft

5. Quoted by Tobler). An insane man was tried for murder and the

prosecutor seems to have urged that the lack of moral responsibility did

not suffice to relieve the accused of legal responsibility and to free him

from punishment, citing as pertinent to the case the Mosaic law, which

inflicted the death penalty on an ox for the like offence. On this point

the court replied: “In the first place, that specifically Jewish law is

not binding upon other governments, and is not observed by them either as

regards oxen or horses. Again, even if the Jewish law should be really

applicable to all men, it could not be appealed to in the present case,

since it is not permissible to draw an inference _a bove ad hominem_.

Inasmuch as no law is given to the ox, it cannot violate any, in other

words, cannot sin and therefore cannot be punished. On the other hand,

death is a severe penalty for man. Nevertheless if God commanded that the

‘goring ox’ should be killed, this was done in order to excite aversion to

the deed, to prevent the animal from injuring others, and in this manner

to punish the owner of the beast. This fact, however, proves nothing

touching the case now before us; for, although God enacted a law for the

ox, he did not enact any for the insane man, and the distinction between

the goring ox and the maniac must be observed. An ox is created for man’s

sake, and can therefore be killed for his sake; and in doing this there is

no question of right or wrong as regards the ox; on the other hand, it is

not permissible to kill a man, unless he has deserved death as a

punishment.” The remarkable points in this decision are, first, the

abrogation of a biblical enactment by an ecclesiastical court of the

seventeenth century, and, secondly, the discussion of a criminal act from

a psychiatrical point of view and the admission of extenuating and

exculpating circumstances derived from this source.

The Koran holds every beast and fowl accountable for injuries done to

each other, but reserves their punishment for the life to come. Among the

Kukis, if a man falls from a tree and is killed, it is the sacred duty of

the next of kin to fell the tree, and cut it up and scatter the chips

abroad. The spirit of the tree was supposed to have caused the mishap, and

the blood of the slain was not thought to be thoroughly avenged until the

offending object had been effaced from the earth. A survival of this

notion was the custom of burning heretics and flinging their ashes to the

four winds or casting them upon rivers running into the sea. The laws of

Drakôn and Erechtheus required weapons and all other objects, by which a

person had lost his life, to be publicly condemned and thrown beyond the

Athenian boundaries. This sentence of banishment, then regarded as one of

the severest that could be inflicted, was pronounced upon a sword, which

had killed a priest, the wielder of the same being unknown; and also upon

a bust of the elegiac poet Theognis, which had fallen on a man and caused

his death. Even in cases which, one would think, might be regarded as

justifiable homicide in self-defence, no such ground of exculpation seems

to have been admitted. Thus the statue erected by the Athenians in honour

of the famous athlete, Nikôn of Thasos, was assailed by his envious foes

and pushed from its pedestal. In falling it crushed one of its assailants,

and was therefore brought before the proper tribunal and sentenced to be

cast into the sea. Judicial proceedings of this kind were called ἄψῦχων

δίκαι (prosecutions of lifeless things) and were conducted before the

Athenian law-court known as the Prytaneion; they are alluded to by

Æschines, Pausanias, Demosthenes, and other writers, and briefly described

in the _Onomasticon_ of Julius Pollux and the _Lexicon Decem Oratorum

Graecorum_ of Valerius Harpokration.

Strictly speaking, the term ἄψῦχων should be applied only to an inanimate

object and not to the brute, which was more correctly called ἄφωνον

(dumb); but this distinction was not always observed either in common

parlance or in legal phraseology. The law on this point as formulated and

expounded by Plato (_De Leg._, IX. 12) was as follows: “If a draught

animal or any other beast kill a person, unless it be in a combat

authorized and instituted by the state, the kinsmen of the slain shall

prosecute the said homicide for murder, and the overseers of the public

lands (ἀγρονόμοι), as many as may be commissioned by the said kinsmen,

shall adjudicate upon the case and send the offender beyond the boundaries

of the country (ἐξορίζειν, exterminate in the literal and original sense

of the term). If a lifeless thing shall deprive a person of life, provided

it may not be a thunderbolt (κεραυνός) or other missile (βέλος) hurled by

a god, but an object which the said person may have run against or by

which he may have been struck and slain, then the kinsman immediate to the

deceased shall appoint the nearest neighbour as judge in order to purify

himself as well as his next of kin from blood-guiltiness, but the culprit

(τὸ ὄφλον) shall be put beyond the boundaries, in the same manner as if it

were an animal.” In the same section it is enacted that if a person be

found dead and the murderer be unknown, then proclamation shall be made by

a herald on the market-place forbidding the murderer to enter any

sanctuary or the land of the slain, and declaring that, if discovered, he

shall be put to death and his body be thrown unburied beyond the

boundaries of the country of the person killed. The object of these

measures was to appease the Erinnys or avenging spirit of the deceased,

and to avert the calamities which would otherwise be brought upon the

land, in accordance with the strict law of retribution demanding blood for

blood, no matter whether it may have been shed wilfully or accidentally.

[Cf. Æschylus, _Cho._, 395, where this law (νόμος) is clearly and strongly

affirmed.] The same superstitious feeling leads the hunters of many savage

tribes to beg pardon of bears and other wild animals for killing them and

to purify themselves by religious rites from the taint incurred by such an

act, the μίασμα of murder, as the Greeks called it.

Quite recently in China fifteen wooden idols were tried and condemned to

decapitation for having caused the death of a man of high military rank.

On complaint of the family of the deceased the viceroy residing at Fouchow

ordered the culprits to be taken out of the temple and brought before the

criminal court of that city, which after due process of law sentenced them

to have their heads severed from their bodies and then to be thrown into a

pond. The execution is reported to have taken place in the presence of a

large concourse of approving spectators and “amid the loud execrations of

the masses,” who seem in their excitement to have “lost their heads” as

well as the hapless deities.

When the Russian prince Dimitri, the son of Ivan II., was assassinated on

May 15, 1591, at Uglich, his place of exile, the great bell of that town

rang the signal of insurrection. For this serious political offence the

bell was sentenced to perpetual banishment in Siberia, and conveyed with

other exiles to Tobolsk. After a long period of solitary confinement it

was partially purged of its iniquity by conjuration and re-consecration

and suspended in the tower of a church in the Siberian capital; but not

until 1892 was it fully pardoned and restored to its original place in

Uglich. A like sentence was imposed by a Russian tribunal on a butting ram

in the latter half of the seventeenth century.

Mathias Abele von Lilienberg, in his _Metamorphosis Telae Judiciariae_, of

which the eighth edition was published at Nuremberg in 1712, states that a

drummer’s dog in an Austrian garrison town bit a member of the municipal

council in the right leg. The drummer was sued for damages, but refused to

be responsible for the snappish cur and delivered it over to the arm of

justice. Thereupon he was released, and the dog sentenced to one year’s

incarceration in the Narrenkötterlein, a sort of pillory or iron cage

standing on the market-place, in which blasphemers, evil-livers, rowdies

and other peace-breakers were commonly confined. [The Narrenkötterlein,

Narrenköderl or Kotter formerly on the chief public squares in Vienna are

described as “Menschenkäfige mit Gittern von Eisen und Holz, bestimmt das

darin versperrte Individuum dem Spotte des Pöbels preiszugeben (zu

narren).” Schläger: _Wiener Skizzen aus dem Mittelalter_, II. 245.]

Mornacius also relates that several mad dogs, which attacked and tore in

pieces a Franciscan novice in 1610, were “by sentence and decree of the

court put to death.” It is surely reasonable enough that mad dogs should

be killed; the remarkable feature of the case is that they should be

formally tried and convicted as murderers by a legal tribunal, and that no

account should have been taken of their rabies as an extenuating

circumstance or ground of acquittal. In such a case the plea of insanity

would certainly seem to be naturally suggested and perfectly valid.

On the other hand, it is expressly declared in the Avesta that a mad dog

shall not be permitted to plead insanity in exculpation of itself, but

shall be “punished with the punishment of a conscious and premeditated

offence” (_baodho-varsta_), _i.e._ by progressive mutilation,

corresponding to the number of persons or beasts it has bitten, beginning

with the loss of its ears, extending to the crippling of its feet and

ending with the amputation of its tail. This cruel and absurd enactment is

wholly inconsistent with the kindly spirit shown in the Avesta towards all

animals recognized as the creatures of Ahuramazda, and especially with the

many measures taken by the Indo-Aryans as a pastoral people for the

protection of the dog. Indeed, a paragraph immediately following in the

same chapter commands the Mazdayasnians to treat such a rabid dog

humanely, and to “wait upon him with medicaments and to try to heal him,

just as they would care for a righteous man.” On this important point

Avestan legislation is so inconsistent and self-contradictory that one may

justly suspect the harsh enactments to be later interpolations.

A curious example of imputed crime and its penal consequences is seen in

the Roman custom of celebrating the anniversary of the preservation of the

Capitol from the night-attack of the Gauls, not only by paying honour to

the descendants of the sacred geese, whose cries gave warning of the

enemy’s approach, adorning them with jewels and carrying them about in

litters, but also by crucifying a dog, as a punishment for the want of

vigilance shown by its progenitors on that occasion. This imputation of

merit and demerit was really no more absurd than to visit the sins of the

fathers on the children, as prescribed by Jewish and other ancient

lawgivers, or to decree corruption of blood in persons attainted of

treason, as is still the practice of modern states, or any other theory of

inherited guilt or scheme of vicarious atonement, that sets the sin of the

federal head of the race to the account of his remotest posterity and

relieves them from its penalties only through the suffering and death of

a wholly innocent person. They are all applications of the barbarous

principle, which, in primitive society, with its gross conceptions of

justice, made the entire tribe responsible for the conduct of each of its

members. The vendetta, which continues to be the unwritten but inviolable

code of many semi-civilized communities, is based upon the same conception

of consanguineous solidarity for the perpetration and avenging of crime.

According to an old Anglo-Saxon law, abolished by King Canute, in case

stolen property was found in the house of a thief, his wife and family,

even to the infant in the cradle, though it had never taken food (_peâh

hit nafre metes ne âbîte_), were punished as partakers of his guilt. The

_Schwabenspiegel_, the oldest digest of South German law, treated as

accessaries all the domestic animals found in a house, in which a crime of

violence had been committed, and punished them with death. [“Man soll

allez daz tötden daz in den huze ist gevonden: leuten und vie, ros und

rinder, hunde und katzen, ganzen und hundre.” § 290.]

Cicero approved of such penalties for political crimes as “severe but wise

enactments, since the father is thereby bound to the interests of the

state by the strongest of ties, namely, love for his children.” Roman law

under the empire punished treason with death and then added: “As to the

sons of traitors, they ought to suffer the same penalty as their parents,

since it is highly probable that they will sometime be guilty of the same

crime themselves; nevertheless, as a special act of clemency, we grant

them their lives, but, at the same time, declare them to be incapable of

inheriting anything from father or mother or of receiving any gift or

bequest in consequence of any devise or testament of kinsmen or friends.

Branded with hereditary infamy and excluded from all hope of honour or of

property, may they suffer the torture of disgrace and poverty until they

shall look upon life as a curse and long for death as a kind release.”

This atrocious edict of the emperors Arcadius and Honorius has its

counterpart in the still more radical code of Pachacutez, the Justinian of

the ancient Peruvians, which punished adultery with the wife of an Inca by

putting to death not only the adulteress and her seducer, but also the

children, slaves and kindred of the culprits, as well as all the

inhabitants of the city in which the crime was committed, while the city

itself was to be razed and the site covered with stones.

The principle enunciated by Cicero has also been accepted by modern

legislators as applicable to high treason. Thus, when Tschech, the

burgomaster of Storkow, attempted to take the life of Frederic William of

Prussia, July 26, 1844, he was tried and executed Dec. 14 of the same

year. On the day after his execution his only daughter, Elizabeth, was

arrested, and to her inquiry by what right she had been deprived of her

freedom, the authorities replied that, “according to Prussian law the

children of a person convicted of high treason and all the members of his

family, especially if they seemed to be dangerous and to share the

opinions of their father, can be imprisoned for life or banished from the

country.” The young lady was then exiled to Westphalia, and there placed

in the custody of an extremely austere parson, until she finally escaped

to France, and afterwards to Switzerland, where she spent the rest of her

days.

When the prefects Tatian and Proculus fell into disgrace, Lycia, their

native land, was deprived of the autonomy it had hitherto enjoyed as a

Roman province, and its inhabitants were disfranchised and declared

incapable of holding any office under the empire. So, too, when Joshua

discovered some of the spoils of Jericho hidden in the tent of Achan, not

only the thief himself, but also “his sons, and his daughters, and his

oxen, and his asses, and his sheep, and his tent, and all that he had,”

were brought into the valley of Achor, and there stoned with stones and

burned with fire. About this time, however, such holocausts of justice

were suppressed among the Jews, and a law enacted that henceforth “the

fathers shall not be put to death, for the children, neither shall the

children be put to death for the fathers, every man shall be put to death

for his own sin;” or, as Jeremiah expresses it figuratively, the

children’s teeth were to be no longer set on edge by the sour grapes

which their fathers had eaten. Yet the persistency of time-honoured custom

and its power of overriding new statutes are seen in the fact that,

several centuries later, at the request of the Gibeonites, whom it had

become desirable to conciliate, David did not scruple to deliver up to

them seven of Saul’s sons to be hanged for the evil which their father had

wrought in slaying these foes of Israel. It would have been a parallel

case if Bismarck had sought to win the friendship and favour of the French

by giving into their hands the descendants of Blücher to be guillotined on

the Place de la Concorde, or, after having made a political pilgrimage to

Canossa, should surrender the children of Dr. Falk to be racked and burned

at the stake by the ultramontanes.

According to the current orthodox theology, treason against God, committed

by our common progenitor, worked “corruption of blood” in the whole human

race, all the children of men being attainted with guilt in consequence of

the act of their first parent. This crude and brutal conception of justice

is the survival of a primitive and barbarous state of society, and it is

curious to observe how the most highly civilized peoples, who have

outgrown this notion and set it aside in the secular relations of man to

man, still cling to it as something sacred and sublime in the spiritual

relations of man to the deity. Only the all-wise and all-powerful

sovereign of the universe is supposed to continue to administer law and

justice on principles which common-sense and the enlightened opinion of

mankind have long since abrogated and banished from earthly legislation.

Thus the divine government, instead of keeping pace with the progress of

human institutions, still corresponds to the ideals of right and

retribution entertained by savage tribes and the lowest types of mankind.

The horrible mutilations to which criminals were formerly subjected,

originated in an endeavour to administer strictly even-handed justice.

What could be fairer or more fit than to punish perjury by cutting off the

two fingers which the perjurer had held up in taking the violated oath? It

was a popular belief that the fingers of an undetected perjurer would grow

out of the grave after death, seeking retributive amputation, as a plant

seeks the light, and that his ghost would never rest until this penalty

had been inflicted. (See Heinrich Roch: _Schles. Chron._, p. 267, where a

case of this kind is recorded.) The Carolina (_constitutio criminalis

Carolina_), although in many respects an advance on mediæval penal

legislation, doomed incendiaries to be burned alive; and an old law, cited

by Döpler (_Theat. Poen._, II. 271), condemned a man who had dug up and

removed a boundary stone to be buried in the earth up to his neck and to

have his head plowed off with a new plow, thus symbolizing in his own

person the grave offence which he had committed. Ivan Basilovitch, a

Muscovite prince, ordered that an ambassador, who did not uncover in his

presence, should have his hat nailed to his head; and it is a feeble

survival of the same idea of proper punishment that makes the American

farmer nail the dead hawk to his barn-door, just as in former times it was

customary to crucify highway robbers at cross-roads.

According to an old Roman law ascribed to Numa Pompilius, the oxen which

plowed up a boundary stone, as well as their driver, were sacrificed to

Jupiter Terminus. In the early development of agriculture, and the

transition from communal to personal property in land, this severe

enactment was deemed necessary to the protection of the “sacra saxa,” by

which the boundary lines of the fields were defined. Only by making the

violation of enclosed ground a sacrilege was it possible to prevent

encroachments upon it, so strong was the lingering prejudice against

individual possessions of this kind running in the blood of a people

descended from nomadic tribes of herdsmen, who regarded sedentary

communities engaged in tilling the soil as their direst foes. The lawgiver

knew very well that the oxen were involuntary agents, and that the plowman

alone was culpable; but when a religious atonement is to be made and an

angry god appeased, moral distinctions determining degrees of

responsibility are uniformly ignored, and the innocent are doomed to

suffer with the guilty. The oxen were tainted by the performance of an

act, in which the exercise of their will was not involved, and must

therefore be consigned to the offended deity. The same is true of the

plowman, who did not escape immolation even when the _motio termini_ or

displacement of the boundary stone occurred unintentionally.

That the feeling, which found expression in such enactments and usages and

survives in schemes of expiation and vicarious sacrifice, lies scarcely

skin-deep under the polished surface of our civilization, is evident from

the force and suddenness with which it breaks out under strong excitement,

as when Cincinnati rioters burn the court-house because they suspect the

judges of venality and are dissatisfied with the verdicts of the juries.

The primitive man and the savage, like the low and ignorant masses of

civilized communities, do not take into consideration whether the objects

from which they suffer injury are intelligent agents or not, but wreak

their vengeance on stocks and stones and brutes, obeying only the rude

instinct of revenge. The power of restraining these aboriginal

propensities, and of nicely analyzing actions and studying mental

conditions in order to ascertain degrees of moral responsibility,

presupposes a high degree of mental development and refinement and great

acuteness of psychological perception, and is, in fact, only a recent

acquisition of a small minority of the human race. The vast bulk of

mankind will have to pass through a long process of intellectual

evolution, and rise far above their present place in the ascending scale

of culture before they attain it.

For this reason Lombroso would abolish trial by jury, which seems to him

not a sign of progress towards better judicatory methods, but a clumsy

survival of primitive justice as administered by barbarous tribes and even

gregarious animals. It makes the administration of justice dependent upon

popular prejudice and passion, and finds its most violent expression or

explosion in lynch law, which is only trial by a jury of the whole

community gone mad. It would certainly be a dismal farce to apply to the

criminal classes the principle that every man must be judged by his peers.

In the cantonal courts of Switzerland the verdict of the jury is uniformly

in favour of the native against the foreigner, no matter what the merits

of the case may be; and this outrageous perversion of right and equity is

called patriotism, a term which conveniently sums up and euphemizes the

general sentiment of Helvetian innkeepers and tradesmen that “the stranger

within their gates” is their legitimate spoil, and has no other _raison

d’être_. In Italy, especially in Naples and Sicily, a thief may be

sometimes condemned, but a murderer is almost invariably acquitted by the

jury, whose decision expresses the corrupted moral sense of a people

accustomed to admire the bandit as a hero and to consider brigandage a

highly honourable profession.

The childish disposition to punish irrational creatures and inanimate

objects, which is common to the infancy of individuals and of races, has

left a distinct trace of itself in that peculiar institution of English

law known as deodand, and derived partly from Jewish and partly from old

German usages and traditions. “If a horse,” says Blackstone, “or any other

animal, of its own motion kill as well an infant as an adult, or if a cart

run over him, they shall in either case be forfeited as deodand.” If a

man, in driving a cart, tumble to the ground and lose his life by the

wheel passing over him, if a tree fall on a man and cause his death, or if

a horse kick his keeper and kill him, then the wheel, the tree and the

horse are deodands _pro rege_, and are to be sold for the benefit of the

poor.

_Omnia quae movent ad mortem sunt Deo danda_ is the principle laid down by

Bracton. If therefore a cart-wheel run over a man and kill him, not only

is the wheel, but also the whole cart to be declared deodand, because the

momentum of the cart in motion contributed to the man’s death; but if the

shaft fall upon a man and kill him, then only the shaft is deodand, since

the cart did not participate in the crime. It is also stated, curiously

enough, that if an infant fall from a cart not in motion and be killed,

neither the horse nor the cart shall be declared deodand; not so,

however, if an adult come to his death in this manner. The ground of this

distinction is not quite clear; although it may arise from the assumption

that the child had no business there, or that such an accident could not

have happened to an adult, unless there was something irregular and

perverse in the conduct of the animal or the vehicle. In the archives of

Maryland, edited by Dr. William Hand Browne and Miss Harrison in 1887,

mention is made of an inquest held January 31, 1637, on the body of a

planter, who “by the fall of a tree had his bloud bulke broken.” “And

furthermore the Jurors aforesaid upon their oath aforesaid say that the

said tree moved to the death of the said John Bryant; and therefore find

the said tree forfeited to the Lord Proprietor.”

According to an old Anglo-Saxon law a sword or other object by which a man

had been slain, was not regarded as pure (_gesund_) until the crime had

been expiated, and therefore could not be used, but must be set apart as a

sacrifice. A sword-cutler would not take such a weapon to polish or repair

without a certificate that it was _gesund_ or free from homicidal taint,

so as not to render himself liable for any harm it might inflict, since it

was supposed to exert a certain magical and malicious influence. Also an

ancient municipal law of the city of Schleswig stipulated that the builder

of a house should be held responsible in case any one should be killed by

a beam, block, rafter or other piece of timber, and pay a fine of nine

marks, or give the object that had committed the manslaughter to the

family or kinsmen of the slain. If he failed to do so and built the

contaminated timber into the edifice, then the owner had to atone for the

homicide with the whole house. (Cf. Heinrich Brunner: _Deutsche

Rechtsgeschichte_, II. p. 557, Anm. 31.) A modern survival of this legal

principle is the notion, current especially among criminals, that any part

of the body of a deceased person, or better still of an executed murderer,

exerts a magical and protective power or brings good luck. It is by no

means uncommon among the peasants and lower classes of Europe to put the

finger of a dead thief under the threshold in order to protect the house

homœpathically against theft. The persistency of this superstition is

shown by the fact that a farmer’s hired man named Sier and belonging to

the hamlet of Heumaden, was tried at Weiden in Bavaria, May 23, 1894, and

convicted of having exhumed the body of a newly buried child in the

churchyard of Moosbach and taken out one of its eyes, which he supposed

would render him invisible to mortal sight like the famous _tarnkappe_ of

old German mythology, and thus enable him to indulge with impunity his

propensity to steal. For this sacrilege he was sentenced to one year and

two months’ imprisonment and to the loss of civil rights for three years.

In some of the Scottish islands it is the custom to beach a boat, from

which a fisherman had been drowned, cursing it for its misdeed and

letting it dry and fall to pieces in the sun. The boat is guilty of

manslaughter and must no longer be permitted to sail the sea with innocent

craft. Scotch law does not seem to have recognized deodand in the strictly

etymological sense of the term, but only escheat, in other words, the

confiscated objects were not necessarily applied to pious purposes--_pro

anima regis et omnium fidelium defunctorum_--but were simply forfeited to

the king or to the state. This form of confiscation never prevailed so

generally in Central and Eastern, as in Western Europe. Some German

communities and territorial sovereigns introduced it from France, but so

modified the practical application of the principle as to award to the

injured party the greater portion, in Lüneburg, for example, two-thirds of

the value of the confiscated animal or object. (_Vide_ Kraut’s _Stadtrecht

von Lüneburg_, No. XCVII. Cited by Von Amira, p. 594.)

Blackstone’s theories of the origin of deodands are exceedingly vague and

unsatisfactory. Evidently the learned author of the _Commentaries_ could

give no consistent explanation of these vestiges of ancient criminal

legislation. His statement that they were intended to punish the owner of

the forfeited property for his negligence, and his further assertion that

they were “designed, in the blind days of popery, as an expiation for the

souls of such as were snatched away by sudden death,” are equally

incorrect. In most cases the owner was perfectly innocent and very

frequently was himself the victim of the accident. He suffered only

incidentally from a penalty imposed for a wholly different purpose, just

as a slaveholder incurs loss when his human chattel commits murder and is

hanged for it. The primal object was to atone for the taking of life in

accordance with certain crude conceptions of retribution. Under

hierarchical governments the prominent idea was to appease the wrath of

God, who otherwise might visit mankind with famine and pestilence and

divers retaliatory scourges. For the same reason the property of a suicide

was deodand. Thus the wife and children of the deceased, who may be

supposed to have already suffered most from the fatal act, were subjected

to additional punishment for it by being robbed of their rightful

inheritance. Yet this was by no means the intention of the lawmakers, who

simply wished to prescribe an adequate atonement for a grievous offence,

and in seeking to accomplish this main purpose, ignored the effect of

their action upon the fortunes of the heirs or deemed it a matter of minor

consideration.

Ancient legislators uniformly regarded a _felo de se_ as a criminal

against society and treated him as a kind of traitor. The man had enjoyed

the support and protection of the body-politic during his infancy and

youth, and, by taking his own life, he shook off the responsibilities and

shirked the duties devolving upon him as an adult member of the

commonwealth. This is why self-murder was called felony and as such

involved forfeiture of goods. Calchas would not permit the body of “the

mad Ajax,” who died by his own hand, to be burned; and the Christian

Church of to-day refuses to bury in consecrated ground with religious

rites any person who deliberately cuts short the thread of his existence

and thus commits treason against the Most High. The Athenians

ignominiously lopped off the hand of a suicide and buried the guilty

instrument of his death, as an accursed thing, apart from the rest of the

interred or incremated body. In some communities all persons over sixty

years of age have been left free to kill themselves, if they wished to do

so. They had performed the duties of citizenship and of procreation and

were permitted to retire in this way, if they saw fit. In very ancient

times, the magistrates of Massalia (Marseilles, then a Greek colony) are

said to have kept on hand a supply of poison to be given to any citizen,

who, on due examination, was found to have good and sufficient reason for

taking his own life. Suicide was thus legalized and facilitated, and

thereby rendered honourable, and was perhaps found more convenient and

economical than to grant pensions or to support paupers. It was a summary

method of getting rid of those who had finished the struggle for existence

or failed in it, and in either case might be a burden to themselves or to

the state. On the other hand, when a suicidal mania seized upon the

maidens of Miletos, an Ionian city in Caria, and threatened to produce a

dearth of wives and mothers, the municipal authorities decreed that the

bodies of all such persons should be exposed naked in the market-place, in

order that virgin modesty and shame might overcome the desire of death,

and check a self-destructive passion extremely detrimental to the Milesian

commonwealth.

It is true, as Blackstone asserts, that the Church claimed deodands as her

due and put the price of them into her own coffers; but this fact does not

explain their origin. They were an expression of the same feeling that led

the public authorities to fill up a well, in which a person had been

drowned, not as a precautionary measure, but as a solemn act of expiation;

or that condemned and confiscated a ship, which, by lurching, had thrown a

man overboard and caused his death.

Deodands were not abolished in England until the reign of Queen Victoria.

With the exception of some vestiges of primitive legislation still

lingering in maritime law, they are, in modern codes, one of the latest

applications of a penal principle, which, in Athens, expatriated stocks

and stones, and in other countries of Europe excommunicated bugs and sent

beasts to the stake and to the gallows.