BUGS AND BEASTS BEFORE THE LAW
It is said that Bartholomew Chassenée,[1] a distinguished French jurist of
the sixteenth century (born at Issy-l’Evêque in 1480), made his reputation
at the bar as counsel for some rats, which had been put on trial before
the ecclesiastical court of Autun on the charge of having feloniously
eaten up and wantonly destroyed the barley-crop of that province. On
complaint formally presented by the magistracy, the official or bishop’s
vicar, who exercised jurisdiction in such cases, cited the culprits to
appear on a certain day and appointed Chassenée to defend them.
In view of the bad repute and notorious guilt of his clients, Chassenée
was forced to employ all sorts of legal shifts and chicane, dilatory pleas
and other technical objections, hoping thereby to find some loophole in
the meshes of the law through which the accused might escape, or at least
to defer and mitigate the sentence of the judge. He urged, in the first
place, that inasmuch as the defendants were dispersed over a large tract
of country and dwelt in numerous villages, a single summons was
insufficient to notify them all; he succeeded, therefore, in obtaining a
second citation, to be published from the pulpits of all the parishes
inhabited by the said rats. At the expiration of the considerable time
which elapsed before this order could be carried into effect and the
proclamation be duly made, he excused the default or non-appearance of his
clients on the ground of the length and difficulty of the journey and the
serious perils which attended it, owing to the unwearied vigilance of
their mortal enemies, the cats, who watched all their movements, and, with
fell intent, lay in wait for them at every corner and passage. On this
point Chassenée addressed the court at some length, in order to show that
if a person be cited to appear at a place, to which he cannot come with
safety, he may exercise the right of appeal and refuse to obey the writ,
even though such appeal be expressly precluded in the summons. The point
was argued as seriously as though it were a question of family feud
between Capulet and Montague in Verona or Colonna and Orsini in Rome.
At a later period of his life Chassenée was reminded of the legal
principle thus laid down and urged to apply it in favour of clients more
worthy of its protection than a horde of vagrant rodents. In 1540 he was
president of the judicial assembly known as the Parliament of Provence on
a memorable occasion when the iniquitous measure for the extirpation of
heresy by exterminating the Waldenses in the villages of Cabrières and
Merindol was under discussion. One of the members of the tribunal, a
gentleman from Arles, Renaud d’Alleins, ventured to suggest to the
presiding officer that it would be extremely unjust to condemn these
unfortunate heretics without granting them a hearing and permitting an
advocate to speak in their defence, so that they might be surrounded by
all the safeguards of justice, adding that the eminent jurist had formerly
insisted upon this right before the court of Autun and maintained that
even animals should not be adjudged and sentenced without having a proper
person appointed to plead their cause. Chassenée thereupon obtained a
decree from the king commanding that the accused Waldenses should be
heard; but his death, which occurred very soon afterwards, changed the
state of affairs and prevented whatever good effects might have been
produced by this simple act of justice. [Cf. Desnoyers: Recherches, etc.
(vide Bibliography), p. 18.]
In the report of the trial published in the Thémis Jurisconsulte for
1820 (Tome I. pp. 194 sqq.) by Berriat Saint-Prix, on the authority of the
celebrated Jacques Auguste De Thou, President of the Parliament of Paris,
the sentence pronounced by the official is not recorded. But whatever the
judicial decision may have been, the ingenuity and acumen with which
Chassenée conducted the defence, the legal learning which he brought to
bear upon the case, and the eloquence of his plea enlisted the public
interest and established his fame as a criminal lawyer and forensic
orator.
Chassenée is said to have been employed in several cases of this kind, but
no records of them seem to have been preserved, although it is possible
that they may lie buried in the dusty archives of some obscure provincial
town in France, once the seat of an ecclesiastical tribunal. The whole
subject, however, has been treated by him exhaustively in a book entitled
Consilium primum, quod tractatus jure dici potest, propter multiplicem et
reconditam doctrinam, ubi luculenter et accurate tractatur quaestio illa:
De excommunicatione animalium insectorum. This treatise, which is the
first of sixty-nine consilia, embodying opinions on various legal
questions touching the holding and transmission of property, entail,
loans, contracts, dowries, wills, and kindred topics, and which holds a
peculiar place in the history of jurisprudence, was originally published
in 1531, and reprinted in 1581, and again in 1588. The edition referred to
in the present work is the first reprint of 1581, a copy of which is in
the Royal Court and State Library of Munich.
This curious dissertation originated, as it appears, in an application of
the inhabitants of Beaune to the ecclesiastical tribunal of Autun for a
decree of excommunication against certain noxious insects called huberes
or hurebers, probably a kind of locust or harvest-fly. The request was
granted, and the pernicious creatures were duly accursed. Chassenée now
raises the query whether such a thing may be rightfully and lawfully done
(sed an recte et de jure fieri possit), and how it should be effected.
“The principal question,” he says, “is whether one can by injunction cause
such insects to withdraw from a place in which they are doing damage, or
to abstain from doing damage there, under penalty of anathema and
perpetual malediction. And although in times past there has never been any
doubt on this point, yet I have thought that the subject should be
thoroughly examined anew, lest I should seem to fall into the vice
censured by Cicero (De Off. I. 6), of regarding things which we do not
know as if they were well understood by us, and therefore rashly giving
them our assent.” He divides his treatise into five parts, or rather
discusses the subject under five heads: “First, lest I may seem to
discourse to the populace, how are these our animals called in the Latin
language; secondly, whether these our animals can be summoned; thirdly,
whether they can be summoned by procurators, and, if they are cited to
appear personally, whether they can appear by proxy, i.e. through
procurators appointed by the judge who summons them; fourthly, what
judge, whether layman or ecclesiastic, is competent to try them, and how
he is to proceed against them and to pass and execute sentence upon them;
fifthly, what constitutes an anathema and how does it differ from an
excommunication.” Chassenée’s method of investigation is not that of the
philosophic thinker, who marshals facts under general laws and traces them
to rational causes, but combines that of the lawyer, who quotes precedents
and examines witnesses, with that of the theologian, who balances
authorities and serves us with texts instead of arguments. He scrupulously
avoids all psychological speculation or metaphysical reasoning, and simply
aims to show that animals have been tried, convicted, and sentenced by
civil and ecclesiastical courts, and that the competence of these
tribunals has been generally recognized.
The documentary evidence adduced is drawn from a great variety of sources:
the scriptures of the Old and New Testament, pagan poets and philosophers,
patristic theologians and homilists, mediæval hagiologists, Virgil, Ovid,
Pliny, Cicero, Cato, Aristotle, Seneca, Silius Italicus, Boethius, Gregory
the Great, Pico della Mirandola, the laws of Moses, the prophecies of
Daniel, and the Institutes of Justinian are alike laid under contribution
and quoted as of equal authority. All is fish that comes to his net out
of his erudition, be it salmon or sea-urchin. If twelve witnesses can be
produced in favour of a statement, and only two against it, his reason
bows to the will of the majority, and accepts the proposition as proved.
It must be added, however, to his credit, that he proceeds in this matter
with strict impartiality and perfect rectitude, takes whatever evidence is
at hand, and never tries to pack the witness-box.
His knowledge of obscure and now utterly forgotten authors, secular and
ecclesiastic, is immense. Like so many scholars of his day he was
prodigiously learned, without being remarkable for clearness or
originality of thought. Indeed, the vastness of his erudition seems rather
to have hampered than helped the vigorous growth of his intellectual
faculties. He often indulges in logical subtilties so shallow in their
speciousness, that they ought not to deceive the veriest smatterer in
dialectics; and the reader is constantly tempted to answer his laboured
argumentations, as Tristram Shandy’s Uncle Toby did the lucubrations of
Corporal Trim, by “whistling half-a-dozen bars of Lillibullero.” The
examples he adduces afford striking illustrations of the gross credulity
to which the strongly conservative, precedent-mongering mind of the
jurisconsult is apt to fall an easy prey. The habit of seeking knowledge
and guidance exclusively in the records and traditions of the past, in the
so-called “wisdom of ages,” renders him peculiarly liable to regard every
act and utterance of antiquity as necessarily wise and authoritative.
In proof of the power of anathemas, Chassenée refers to the cursing of the
serpent in the Garden of Eden, causing it to go upon its belly for all
time; David’s malediction of the mountains of Gilboa, so that they had
neither rain nor dew; God’s curse upon the city of Jericho, making its
strong walls fall before the blasts of trumpets; and in the New Testament
the withered fig-tree of Bethany. The words of Jesus, “Every tree that
bringeth not forth good fruit is hewn down and cast into the fire,” he
interprets, not merely as the best means of getting rid of a cumberer of
the orchard, but as a condemnation and punishment of the tree for its
delinquencies, and adds: “If, therefore, it is permitted to destroy an
irrational thing, because it does not produce fruit, much more is it
permitted to curse it, since the greater penalty includes the less” (cum
si liceat quid est plus, debet licere quid est minus).
An English professor of divinity, Richard Chevenix Trench, justifies the
withering of the fruitless fig-tree on the same ground or, at least, by a
similar process of reasoning: “It was punished, not for being without
fruit, but for proclaiming by the voice of those leaves that it had such;
not for being barren, but for being false.” According to this exegesis, it
was the telling of a wilful lie that “drew on it the curse.” The guilty
fig is thus endowed with a moral character and made clearly conscious of
the crime for which it suffered the penalty of death: “Almost as soon as
the word of the Lord was spoken, a shuddering fear may have run through
all the leaves of the tree, which was thus stricken at the heart.” As
regards the culpability and punishableness of the object, the modern
divine and the mediæval jurist occupy the same standpoint; only the
latter, with a stricter judicial sense, insists that there shall be no
infliction of punishment until the malefactor has been convicted by due
process of law, and that he shall enjoy all the safeguards which legal
forms and technicalities have thrown around him and under whose covert
even the vilest criminal has the right to take refuge. The Anglican
hermeneutist, on the contrary, would justify the curse and admit the
validity of the anathema, although it was only the angry expression of an
unreasonable impatience disappointed in not finding fruit at the wrong
season, “for the time of figs was not yet.”
A curious and characteristic specimen of the absurd and illogical
inferences, which Chassenée is constantly deducing from his texts, is the
use he makes of the passage in Virgil’s first Georgic, in which the poet
remarks that “no religion has forbidden us to draw off water-courses for
irrigating purposes, to enclose crops with fences, or to lay snares for
birds,” all these things being essential to successful husbandry. But from
the right to snare birds, our jurisprudent infers the right to
excommunicate them, since “no snares are stronger than the meshes of an
anathema.” Far-fetched deductions and wretched twaddle of this sort fill
many pages of the famous lawyer’s dissertation.
Coming down to more recent times, Chassenée mentions several instances of
the effectiveness of anathemas, accepting as convincing testimony the
ecstacies of saints and the extravagant statements of hagiologists without
the slightest expression of doubt as to the truth of these legends. Thus
he relates how a priest anathematized an orchard, because its fruits
tempted the children of his parish and kept them away from mass. The
orchard remained barren until, at the solicitation of the Duchess of
Burgundy, the ban was removed. In like manner the Bishop of Lausanne freed
Lake Leman from eels, which had become so numerous as seriously to
interfere with boating and bathing; on another occasion in the year 1451
the same ecclesiastic expelled from the waters of this lake an immense
number of enormous blood-suckers, which threatened to destroy all the
large fish and were especially fatal to salmon, the favourite article of
food on fast-days. This method of procedure was both cheap and effective
and, as Felix Malleolus informs us in his Tractatus de Exorcismis (I),
received the approbation of all the learned doctors of the University of
Heidelberg: omnes studii Heydelbergensis Doctores hujusmodi ritus
videntes et legentes consenserunt. By the same agency an abbot changed
the sweet white bread of a Count of Toulouse, who abetted and protected
heresy, into black, mouldy bread, so that he, who would fain feed souls
with corrupt spiritual food, was forced to satisfy his bodily hunger with
coarse and unsavoury provender. No sooner was the excommunication removed
than the bread resumed its original purity and colour. Egbert, Bishop of
Trier, anathematized the swallows, which disturbed the devotions of the
faithful by their chirping and chattering, and sacrilegiously defiled his
head and vestments with their droppings, when he was officiating at the
altar. He forbade them to enter the sacred edifice on pain of death; and
it is still a popular superstition at Trier, that if a swallow flies into
the cathedral, it immediately falls to the ground and gives up the ghost.
Another holy man, known as John the Lamb, cursed the fishes, which had
incurred his anger, with results equally fatal to the finny tribe. It is
also related of the honey-tongued St. Bernard, that he excommunicated a
countless swarm of flies, which annoyed the worshippers and officiating
priests in the abbey church of Foigny, and lo, on the morrow they were,
like Sennacherib’s host, “all dead corpses.” William, Abbot of St.
Theodore in Rheims, who records this miraculous event, states that as soon
as the execration was uttered, the flies fell to the floor in such
quantities that they had to be thrown out with shovels (palis
ejicientes). This incident, he adds, was so well known that the cursing
of the flies of Foigny became proverbial and formed the subject of a
parable. [Vita S. Bernardi, auctore Wilhelmo abbate S. Thod. Rhem. I.
11.] According to the usual account, the malediction was not so drastic in
its operation and did not cause the flies to disappear until the next day.
The rationalist, whose chill and blighting breath is ever nipping the
tender buds of faith, would doubtless suggest that a sharp and sudden
frost may have added to the force and efficacy of the excommunication. The
saint resorted to this severe and summary measure, says the monkish
chronicler, because the case was urgent and “no other remedy was at hand.”
Perhaps this lack of other means of relief may refer to the absence of
“deacons with fly-flaps,” who, according to a contemporary writer, were
appointed “to drive away the flies when the Pope celebrateth.”
The island Reichenau in Lake Constance, which derives its name from its
fertility and is especially famous for the products of its vineyards and
its orchards, was once so infested by venomous reptiles as to be
uninhabitable by human beings. Early in the eighth century, as the legend
goes, it was visited by St. Pirminius, and no sooner had he set foot upon
it than these creatures all crawled and wriggled into the water, so that
the surface of the lake was covered for three days and three nights with
serpents, scorpions and hideous worms. Peculiar vermifugal efficacy was
ascribed to the crosier of St. Magnus, the apostle of Algau, which was
preserved in the cloister of St. Mang at Füssen in Bavaria, and from 1685
to 1770 was repeatedly borne in solemn procession to Lucerne, Zug, Schwyz
and other portions of Switzerland for the expulsion and extermination of
rats, mice, cockchafers and other insects. Sometimes formulas of
malediction were procured directly from the pope, which, like saints’
curses, could be applied without legal formalities. Thus in 1660 the
inhabitants of Lucerne paid four pistoles and one Roman thaler for a
document of this kind; on Nov. 15, 1731, the municipal council of Thonou
in Savoy resolved to join with other parishes of that province to obtain
from Rome an excommunication against insects, the expenses for which are
to be assessed pro rata;[2] in 1740 the commune of Piuro purchased from
His Holiness a similar anathema; in the same year the common council of
Chiavenna discussed the propriety of applying to Rome for an execratory
against beetles and bears; and in December 1752 it was proposed by the
same body to take like summary measures in order to get rid of a pest of
rodents. In 1729, 1730 and 1749 the municipal council of Lucerne ordered
processions to be made on St. Magnus’ Day from the Church of St. Francis
to Peter’s Chapel for the purpose of expelling weevils. This custom was
observed annually from 1749 to 1798. The pompous ceremony has been
superseded in Protestant countries by an officially appointed day of
fasting and prayer.
In his “First Counsel” Chassenée not only treats of methods of procedure,
and gives forms of plaints to be drawn up and tendered to the tribunal by
the injured party, as well as useful hints to the pettifogger in the
exercise of his tortuous and tricky profession, but he also discusses many
legal principles touching the jurisdiction of courts, the functions of
judges, and other characteristic questions of civil, criminal, and
canonical law. Animals, he says, should be tried by ecclesiastical
tribunals, except in cases where the penalty involves the shedding of
blood. An ecclesiastical judge is not competent in causa sanguinis, and
can impose only canonical punishments, although he may have jurisdiction
in temporal matters and punish crimes not involving a capital sentence.
[Nam judex ecclesiasticus in causa sanguinis non est competens judex,
licet habeat jurisdictionem in temporalibus et possit crimina poenam
sanguinis non existentia (exigentia is obviously the correct reading)
castigare. Cons. prim. IV. § 5.] For this reason the Church never
condemned heretics to death, but, having decided that they should die,
gave them over to the secular power for formal condemnation, usually under
the hollow and hypocritical pretence of recommending them to mercy. In the
prosecution of animals the summons was commonly published from the parish
pulpit and the whole judicial process bore a distinctively ecclesiastical
character. In most cases the presiding judge or official was the vicar of
the parish acting as the deputy of the bishop of the diocese. Occasionally
the curate officiated in this capacity. Sometimes the trial was conducted
before a civil magistrate under the authority of the Church, or the matter
was submitted to the adjudication of a conjurer, who, however, appointed
two proctors to plead respectively for the plaintiff and the defendant and
who rendered his verdict in due legal form. Indeed, the word “conjurer”
seems to have been used as a popular designation of the person, whether
priest or layman, who exercised judicatory functions in such trials,
probably because, as a rule, the sentence could be executed only by
conjuration or the invocation of supernatural aid.
Another point, which strikes us very comically, but which had to be
decided before the trial could proceed, was whether the accused were to be
regarded as clergy or laity. Chassenée thinks that there is no necessity
of testing each individual case, but that animals should be looked upon as
lay persons. This, he declares, should be the general presumption; but if
any one wishes to affirm that they have ordinem clericatus and are
entitled to benefit of clergy, the burden of proof rests upon him and he
is bound to show it (deberet estud probare). Probably our jurist would
have made an exception in favour of the beetle, which entomologists call
clerus; it is certain, at any rate, that if a bug bearing this name had
been brought to trial, the learning and acuteness displayed in arguing the
point in dispute would have been astounding. We laugh at the subtilties
and quiddities of mediæval theologians, who seriously discussed such silly
questions as the digestibility of the consecrated elements in the
eucharist; but the importance attached to these trivialities was not so
much the peculiarity of a single profession as the mental habit of the
age, the result of scholastic training and scholastic methods of
investigation, which tainted law no less than divinity. Nevertheless the
ancillary relations of all other sciences and disciplines to theology
render the latter chiefly responsible for this fatal tendency.
Chassenée also makes a distinction between punitive and preventive
purposes in the prosecution of animals, between inflicting penalties upon
them for crimes committed and taking precautionary measures to keep them
from doing damage. By this means he seeks to evade the objection, that
animals are incapable of committing crimes, because they are not endowed
with rational faculties. He then proceeds to show that “things not
allowable in respect to crimes already committed are allowable in respect
to crimes about to be committed in order to prevent them.” Thus a layman
may not arrest an ecclesiastic for a delict fully consummated, but may
seize and detain him in order to hinder the consummation of a delict. In
such cases, an inferior may coerce and correct a superior; even an
irrational creature may put restraint upon a human being and hold him back
from wrong-doing. In illustration of this legal point he cites an example
from Holy Writ, where “Balaam, the prophet and servant of the Most High,
was rebuked by a she-ass.”
Chassenée endeavours to clinch his argument as usual by quoting biblical
texts and adducing incidents from legendary literature. The province of
zoö-psychology, which would have furnished him with better material for
the elucidation of his subject, he leaves untouched, simply because it was
unknown to him. If crime consists in the commission of deeds hurtful to
other sentient beings, knowing such actions to be wrong, then the lower
animals are certainly guilty of criminal offences. It is a
well-established fact, that birds, beasts and insects, living together in
communities, have certain laws, which are designed to promote the general
welfare of the herd, the flock or the swarm, and the violation of which by
individual members they punish corporally or capitally as the case may
require. It is likewise undeniable, that domestic animals often commit
crimes against man and betray a consciousness of the nature of their acts
by showing fear of detection or by trying to conceal what they have done.
Man, too, recognizes their moral responsibility by inflicting chastisement
upon them, and sometimes feels justified in putting incorrigible
offenders, a vicious bull, a thievish cat or a sheep-killing dog,
summarily to death. Of course this kind of punishment is chiefly
preventive, nevertheless it is provoked by acts already perpetrated and is
not wholly free from the element of retributive justice. Such a
proceeding, however, is arbitrary and autocratic, and if systematically
applied to human beings would be denounced as intolerable tyranny.
Chassenée insists that under no circumstances is a penalty to be imposed
except by judicial decision—nam poena nunquam imponitur, nisi lex
expresse dicat—and in support of this principle refers to the apostle
Paul, who declares that “sin is not imputed when there is no law.” He
appears to think that any technical error would vitiate the whole
procedure and reduce the ban of the Church to mere brutum fulmen. If he
lays so great stress upon the observance of legal forms, which in the
criminal prosecution of brute beasts strike us as the caricature and farce
of justice, it is because he deems them essential to the effectiveness of
an excommunication. The slightest mispronunciation of a word, an incorrect
accentuation or false intonation in uttering a spell suffices to dissolve
the charm and nullify the occult workings of the magic. The lack of a
single link breaks the connection and destroys the binding force of the
chain; everything must be “well-thought, well-said and well-done,” not
ethically, but ritually, as prescribed in the old Avestan formula: humata
hûkhta huvarshta. All the mutterings and posturings, which accompany the
performance of a Brahmanical sacrifice, or a Catholic mass, or any other
kind of incantation have their significance, and none of them can be
omitted without marring the perfection of the ceremonial and impairing its
power. An anathema of animals pronounced in accordance with the sentence
passed upon them by a tribunal, belongs to the same category of
conjurations and is rendered nugatory by any formal defect or judicial
irregularity.
Sometimes the obnoxious vermin were generously forewarned. Thus the
grand-vicars of Jean Rohin, Cardinal Bishop of Autun, having been informed
that slugs were devastating several estates in different parts of his
diocese, on the 17th of August, 1487, ordered public processions to be
made for three days in every parish, and enjoined upon the said slugs to
quit the territory within this period under penalty of being accursed. On
the 8th of September, 1488, a similar order was issued at Beaujeu. The
curates were charged to make processions during the offices, and the slugs
were warned three times to cease from vexing the people by corroding and
consuming the herbs of the fields and the vines, and to depart; “and if
they do not heed this our command, we excommunicate them and smite them
with our anathema.” In 1516, the official of Troyes pronounced sentence on
certain insects (adversus brucos seu eurucas vel alia non dissimilia
animalia, Gallicè urebecs, probably a species of curculio), which laid
waste the vines, and threatened them with anathema, unless they should
disappear within six days. Here it is expressly stated that a counsellor
was assigned to the accused, and a prosecutor heard in behalf of the
aggrieved inhabitants. As a means of rendering the anathema more
effective, the people are also urged to be prompt and honest in the
payment of tithes. Chassenée, too, endorses this view, and in proof of its
correctness refers to Malachi, where God promises to rebuke the devourer
for man’s sake, provided all the tithes are brought into the storehouse.
The archives of the old episcopal city of St. Jean-de-Maurienne contain
the original records of legal proceedings instituted against some
insects, which had ravaged the vineyards of St. Julien, a hamlet situated
on the route over Mt. Cenis and famous for the excellence of its vintage.
The defendants in this case were a species of greenish weevil (charançon)
known to entomologists as rychites auratus, and called by different
names, amblevin, bèche, verpillion, in different provinces of France.
Complaint was first made by the wine-growers of St. Julien in 1545 before
François Bonnivard, doctor of laws. The procurator Pierre Falcon and the
advocate Claude Morel defended the insects, and Pierre Ducol appeared for
the plaintiffs. After the presentation and discussion of the case by both
parties, the official, instead of passing sentence, issued a proclamation,
dated the 8th of May, 1546, recommending public prayers and beginning with
the following characteristic preamble: “Inasmuch as God, the supreme
author of all that exists, hath ordained that the earth should bring forth
fruits and herbs (animas vegetativas), not solely for the sustenance of
rational human beings, but likewise for the preservation and support of
insects, which fly about on the surface of the soil, therefore it would be
unbecoming to proceed with rashness and precipitance against the animals
now actually accused and indicted; on the contrary, it would be more
fitting for us to have recourse to the mercy of heaven and to implore
pardon for our sins.” Then follow instructions as to the manner in which
the public prayers are to be conducted in order to propitiate the divine
wrath. The people are admonished to turn to the Lord with pure and
undivided hearts (ex toto et puro corde), to repent of their sins with
unfeigned contrition, and to resolve to live henceforth justly and
charitably, and above all to pay tithes. High mass is to be celebrated on
three consecutive days, namely on May 20th, 21st, and 22nd, and the host
to be borne in solemn procession with songs and supplications round the
vineyards. The first mass is to be said in honour of the Holy Spirit, the
second in honour of the Blessed Virgin, and the third in honour of the
tutelar saint of the parish. At least two persons of each household are
required to take part in these religious exercises. A procès-verbal,
signed by the curate Romanet, attests that this programme was fully
carried out and that the insects soon afterwards disappeared.
About thirty years later, however, the scourge was renewed and the
destructive insects were actually brought to trial. The proceedings are
recorded on twenty-nine folia and entitled: De actis scindicorum
communitatis Sancti Julliani agentium contra animalia bruta ad formam
muscarum volantia coloris viridis communi voce appellata verpillions seu
amblevins. The documents, which are still preserved in the archives of
St. Julien, were communicated by M. Victor Dalbane, secretary of the
commune, to M. Léon Ménebréa, who printed them in the appendix to his
volume: De l’origine de la forme et de l’esprit des jugements rendus au
moyen-âge contre les animaux. Chambery, 1846. This treatise appeared
originally in the twelfth tome of the Mémoires de la Société Royale
Académique de Savoie.
It may be proper to add that Ménebréa’s theory of “the spirit, in which
these judgments against animals were given,” is wholly untenable. He
maintains that “these procedures formed originally only a kind of symbol
intended to revive the sentiment of justice among the masses of the
people, who knew of no right except might and of no law except that of
intimidation and violence. In the Middle Ages, when disorder reigned
supreme, when the weak remained without support and without redress
against the strong, and property was exposed to all sorts of attacks and
all forms of ravage and rapine, there was something indescribably
beautiful in the thought of assimilating the insect of the field to the
masterpiece of creation and putting them on an equality before the law. If
man should be taught to respect the home of the worm, how much more ought
he to regard that of his fellow-man and learn to rule in equity.”
This explanation is very fine in sentiment, but expresses a modern, and
not a mediæval way of thinking. The penal prosecution of animals, which
prevailed during the Middle Ages, was by no means peculiar to that period,
but has been frequently practised by primitive peoples and savage tribes;
neither was it designed to inculcate any such moral lesson as is here
suggested, nor did it produce any such desirable result. So far from
originating in a delicate and sensitive sense of justice, it was, as will
be more fully shown hereafter, the outcome of an extremely crude, obtuse,
and barbaric sense of justice. It was the product of a social state, in
which dense ignorance was governed by brute force, and is not to be
considered as a reaction and protest against club-law, which it really
tended to foster by making a travesty of the administration of justice and
thus turning it into ridicule. It was also in the interest of
ecclesiastical dignities to keep up this parody and perversion of a sacred
and fundamental institute of civil society, since it strengthened their
influence and extended their authority by subjecting even the caterpillar
and the canker-worm to their dominion and control.
But to return to the records of the trial. On the 13th of April, 1587, the
case was laid before “his most reverend lordship, the prince-bishop of
Maurienne, or the reverend lord his vicar-general and official” by the
syndics and procurators, François Amenet and Petremand Bertrand, who, in
the name of the inhabitants of St. Julien, presented the following
statement and petition: “Formerly by virtue of divine services and
earnest supplications the scourge and inordinate fury of the aforesaid
animals did cease; now they have resumed their depredations and are doing
incalculable injury. If the sins of men are the cause of this evil, it
behoveth the representatives of Christ on earth to prescribe such measures
as may be appropriate to appease the divine wrath. Wherefore we the
afore-mentioned syndics, François Amenet and Petremand Bertrand, do appear
anew (ex integro) and beseech the official, first, to appoint another
procurator and advocate for the insects in place of the deceased Pierre
Falcon and Claude Morel, and secondly, to visit the grounds and observe
the damage, and then to proceed with the excommunication.”
In compliance with this request, the distinguished Antoine Filliol was
appointed procurator for the insects, with a moderate fee (salario
moderato), and Pierre Rembaud their advocate. The parties appeared before
the official on the 30th day of May and the case was adjourned to the 6th
of June, when the advocate, Pierre Rembaud, presented his answer to the
declaration of the plaintiffs, showing that their action is not
maintainable and that they should be nonsuited. After approving of the
course pursued by his predecessor in office, he affirms that his clients
have kept within their right and not rendered themselves liable to
excommunication, since, as we read in the sacred book of Genesis, the
lower animals were created before man, and God said to them: Let the earth
bring forth the living creature after his kind, cattle and creeping thing,
and beast of the earth after his kind; and he blessed them saying, Be
fruitful and multiply and fill the waters of the seas, and let fowl
multiply in the earth. Now the Creator would not have given this command,
had he not intended that these creatures should have suitable and
sufficient means of support; indeed, he has expressly stated that to every
thing that creepeth upon the earth every green herb has been given for
meat. It is therefore evident that the accused, in taking up their abode
in the vines of the plaintiffs, are only exercising a legitimate right
conferred upon them at the time of their creation. Furthermore, it is
absurd and unreasonable to invoke the power of civil and canonical law
against brute beasts, which are subject only to natural law and the
impulses of instinct. The argument urged by the counsel for the
plaintiffs, that the lower animals are made subject to man, he dismisses
as neither true in fact nor pertinent to the present case. He suggests
that the complainants, instead of instituting judicial proceedings, would
do better to entreat the mercy of heaven and to imitate the Ninevites,
who, when they heard the warning voice of the prophet Jonah, proclaimed a
fast and put on sackcloth. In conclusion, he demands that the petition of
the plaintiffs be dismissed, the monitorium revoked and annulled, and all
further proceedings stayed, to which end the gracious office of the judge
is humbly implored (humiliter implorato benigno officio judicis).
The case was adjourned to the 12th and finally to the 19th of June, when
Petremand Bertrand, the prosecuting attorney, presented a lengthy
replication, of which the defendants’ advocate demanded a copy with due
time for deliberation. This request led to a further adjournment till the
26th of June, but as this day turned out to be a dies feriatus or
holiday, no business could be transacted until the 27th, when the advocate
of the commune, François Fay (who seems to have taken the place of Amenet,
if he be not the same person), in reply to the defendants’ plea, argued
that, although the animals were created before man, they were intended to
be subordinate to him and subservient to his use, and that this was,
indeed, the reason of their prior creation. They have no raison d’être
except as they minister to man, who was made to have dominion over them,
inasmuch as all things have been put under his feet, as the Psalmist
asserts and the apostle Paul reiterates. On this point, he concludes, our
opponent has added nothing refutatory of the views, which have been held
from time immemorial by our ancestors; we need only refer to the opinions
formerly expressed by the honourable Hippolyte Ducol as satisfactory. The
advocate for the defence merely remarked that he had not yet received the
document ordered on the 19th of June, and the further consideration of the
case was postponed till the 4th of July. Antoine Filliol then made a
rejoinder to the plaintiffs’ replication, denying that the subordination
of the lower animals to man involves the right of excommunicating them,
and insisting upon his former position, which the opposing counsel had not
even attempted to disprove, namely, that the lower animals are subject
solely to natural law, “a law originating in the eternal reason and
resting upon a basis as immutable as that of the divine law of revelation,
since they are derived from the same source, namely, the will and power of
God.” It is evident, he adds, that the action brought by the plaintiffs is
not maintainable and that judgment should be given accordingly.
On the 18th of July, the same parties appear before the official of St.
Jean-de-Maurienne. The procurator of the insects demands that the case be
closed and the plaintiffs debarred from drawing up any additional
statements or creating any further delay by the introduction of irrelevant
matter, and requests that a decision be rendered on the documents and
declarations already adduced. The prosecuting attorney, whose policy seems
to have been to keep the suit pending as long as possible, applies for a
new term (alium terminum), which was granted.
Meanwhile, in view of the law’s long delay, other measures were taken for
the speedier adjustment of the affair by compromise. On the 29th of June,
1587, a public meeting was called at noon immediately after mass on the
great square of St. Julien, known as Parloir d’Amont, to which all hinds
and habitants (manants et habitants) were summoned by the ringing of the
church bell to consider the propriety and necessity of providing for the
said animals a place outside of the vineyards of St. Julien, where they
might obtain sufficient sustenance without devouring and devastating the
vines of the said commune. This meeting appears to have been held by the
advice of the plaintiffs’ advocate, François Fay, and at the suggestion of
the official. A piece of ground in the vicinity was selected and set apart
as a sort of insect enclosure, the inhabitants of St. Julien, however,
reserving for themselves the right to pass through the said tract of land,
“without prejudice to the pasture of the said animals,” and to make use of
the springs of water contained therein, which are also to be at the
service of the said animals; they reserve furthermore the right of working
the mines of ochre and other mineral colours found there, without doing
detriment to the means of subsistence of said animals, and finally the
right of taking refuge in this spot in time of war or in case of like
distress. The place chosen is called La Grand Feisse and described with
the exactness of a topographical survey, not only as to its location and
dimensions, but also as to the character of its foliage and herbage. The
assembled people vote to make this appropriation of land and agree to draw
up a conveyance of it “in good form and of perpetual validity,” provided
the procurator and advocate of the insects may, on visitation and
inspection of the ground, express themselves satisfied with such an
arrangement; in witness whereof the protocol is signed “L. Prunier,
curial,” and stamped with the seal of the commune.
But this attempt of the inhabitants to conciliate the insects and to
settle their differences by mutual concessions did not put an end to the
litigation. On the 24th of July, an “Extract from the Register of the
Curiality of St. Julien,” containing the proceedings of the public
meeting, was submitted to the court by Petremand Bertrand, procurator of
the plaintiffs, who called attention to the very generous offer made by
the commune and prayed the official to order the grant to be accepted on
the conditions specified, and to cause the defendants to vacate the
vineyards and to forbid them to return to the same on pain of
excommunication. Antoine Filliol, procurator of the insects, requested a
copy of the procès-verbal and time for deliberation. The court complied
with this request and adjourned the case till “the first juridical day
after the harvest vacation,” which fell on the 11th of August, and again
by common consent till the 20th of the same month.
At this time, Charles Emanuel I., Duke of Savoy, was preparing to invade
the Marquisate of Saluzzo, and the confusion caused by the expedition of
troops over Mt. Cenis interfered with the progress of the trial, which was
postponed till the 27th of August, and again, since the passage of armed
men was still going on (actento transitu armigerorum), till the 3rd of
September, when Antoine Filliol declared that he could not accept for his
clients the offer made by the plaintiffs, because the place was sterile
and neither sufficiently nor suitably supplied with food for the support
of the said animals; he demanded, therefore, that the proposal be rejected
and the action dismissed with costs to the complainants (petit agentes
repelli cum expensis). The “egregious Petremand Bertrand,” in behalf of
the plaintiffs, denies the correctness of this statement and avers that
the spot selected and set apart as an abode for the insects is admirably
adapted to this purpose, being full of trees and shrubs of divers kinds,
as stated in the conveyance prepared by his clients, all of which he is
ready to verify. He insists, therefore, upon an adjudication in his
favour. The official took the papers of both parties and reserved his
decision, appointing experts, who should in the meantime examine the
place, which the plaintiffs had proffered as an asylum for the insects,
and submit a written report upon the fitness of the same.
The final decision of the case, after such careful deliberation and so
long delay, is rendered doubtful by the unfortunate circumstance that the
last page of the records has been destroyed by rats or bugs of some sort.
Perhaps the prosecuted weevils, not being satisfied with the results of
the trial, sent a sharp-toothed delegation into the archives to obliterate
and annul the judgment of the court. At least nothing should be thought
incredible or impossible in the conduct of creatures, which were deemed
worthy of being summoned before ecclesiastical tribunals and which
succeeded as criminals in claiming the attention and calling forth the
legal learning and acumen of the greatest jurists of their day.
In the margin of the last page are some interesting items of expenses
incurred: “pro visitatione III flor.,” by which we are to understand
three florins to the experts, who were appointed to visit the place
assigned to the insects; then “solverunt scindici Sancti Julliani incluso
processu Animalium sigillo ordinationum et pro copia que competat in
processu dictorum Animalium omnibus inclusis XVI flor.,” which may be
summed up as sixteen florins for clerical work including seals; finally,
“item pro sportulis domini vicarii III flor.,” three florins to the
vicar, who acted as the bishop’s official and did not receive a regular
fee, but was not permitted to go away empty-handed. The date, which
follows, Dec. 20, 1587, may be assumed to indicate the time at which the
trial came to an end, after a pendency of more than eight months. (Vide
Appendix A.)
In the legal proceedings just described, two points are presented with
great clearness and seem to be accepted as incontestable: first, the right
of the insects to adequate means of subsistence suited to their nature.
This right was recognized by both parties; even the prosecution did not
deny it, but only maintained that they must not trespass cultivated fields
and destroy the fruits of man’s labour. The complainants were perfectly
willing to assign to the weevils an uncultivated tract of ground, where
they could feed upon such natural products of the soil as were not due to
human toil and tillage. Secondly, no one appears to have doubted for a
moment that the Church could, by virtue of its anathema, compel these
creatures to stop their ravages and cause them to go from one place to
another. Indeed, a firm faith in the existence of this power was the pivot
on which the whole procedure turned, and without it, the trial would have
been a dismal farce in the eyes of all who took part in it.
It is related in the chronicles of an ancient abbey (Le Père Rochex:
Gloire de l’Abbaye et Vallée de la Novalaise), that St. Eldrad commanded
the snakes, which infested the environs of a priory in the valley of
Briançon, to depart, and, taking a staff in his hand, conducted them to a
desert place and shut them up in a cave, where they all miserably
perished. Perhaps the serpent, which suffered Satan to take possession of
its seductive form and thus played such a fatal part in effecting the fall
of man and in introducing sin into the world, may have been regarded as
completely out of the pale and protection of law, and as having no rights
which an ecclesiastical excommunicator or a wonder-working saint would be
bound to respect. As a rule, however, such an arbitrary abuse of
miraculous power to the injury or destruction of God’s creatures was
considered illegal and unjustifiable, although irascible anchorites and
other holy men under strong provocation often gave way to it. Mediæval
jurists frowned upon summary measures of this sort, just as modern lawyers
condemn the practice of lynch-law as mobbish and essentially seditious,
and only to be excused as a sudden outburst of public indignation at some
exceptionally brutal outrage.
Properly speaking, animals cannot be excommunicated, but only
anathematized; just as women, according to old English law, having no
legal status of their own and not being bound in frankpledge as members of
the decennary or tithable community, could not be outlawed, but only
“waived” or abandoned. This form of ban, while differing theoretically
from actual outlawry, was practically the same in its effects upon the
individual subjected to it. Excommunication is, as the etymology of the
word implies, the exclusion from the communion of the Church and from
whatever spiritual or temporal advantages may accrue to a person from this
relation. It is one of the consequences of an anathema, but is limited in
its operation to members of the ecclesiastical body, to which the lower
animals do not belong. This was the generally accepted view, and is the
opinion maintained by Gaspard Bailly, advocate and councillor of the
Sovereign Senate of Savoy, in his Traité des Monitoires, avec un
Plaidoyer contre les Insects, printed at Lyons in 1668, but it has not
always been held by writers on this subject, some of whom do not recognize
this distinction between anathema and excommunication on the authority of
many passages of Holy Writ, affirming that, as the whole creation was
corrupted by the fall, so the atonement extends to all living creatures,
which are represented as longing for the day of their redemption and
regeneration.
One of the strong points made by the counsel for the defence in
prosecutions of this kind was that these insects were sent to punish man
for his sins, and should therefore be regarded as agents and emissaries of
the Almighty, and that to attempt to destroy them or to drive them away
would be to fight against God (s’en prendre à Dieu). Under such
circumstances, the proper thing to do would be, not to seek legal redress
and to treat the noxious creatures as criminals, but to repent and humbly
to entreat an angry Deity to remove the scourge. This is still the
standpoint of Christian orthodoxy, Protestant as well as Catholic, and the
argument applies with equal force to the impious and atheistic
substitution of Paris green and the chlorate of lime for prayer and
fasting as exterminators of potato-bugs. The modern, like the mediæval
horticulturist may ward off devouring vermin from his garden by the use of
ashes, but he strews them on his plants instead of sprinkling them on his
own head, and thus indicates to what extent scientific have superseded
theological methods in the practical affairs of life.
Thomas Aquinas, the “angelic doctor,” in his Summa Theologiæ raises the
query, whether it is permissible to curse irrational creatures (utrum
liceat irrationabiles creaturas adjurare). He states, in the first place,
that curses and blessings can be pronounced only upon such things as are
susceptible of receiving evil or good impressions from them, or in other
words, upon sentient and rational beings, or upon irrational creatures and
insentient things in their relation to rational beings, so that the latter
are the objects ultimately aimed at and favourably or unfavourably
affected. Thus God cursed the earth, because it is essential to a man’s
subsistence; Jesus cursed the barren fig-tree symbolizing the Jews, who
made a great show of leafage in the form of rites and ceremonies, but bore
no fruits of righteousness; Job cursed the day on which he was born,
because he took from his mother’s womb the taint of original sin; David
cursed the rocks and mountains of Gilboa, because they were stained with
the blood of “the beauty of Israel”; in like manner the Lord sends locusts
and blight and mildew to destroy the harvests, because these are
intimately connected with the happiness of mankind, whose sins he wishes
to punish.
It is laid down as a legal maxim by mediæval jurisprudents that no animal
devoid of understanding can commit a fault (nec enim potest animal
injuriam fecisse quod sensu caret). This doctrine is endorsed by the
great theologian and scholastic Thomas of Aquino. If we regard the lower
animals, he says, as creatures coming from the hand of God and employed by
him as agents for the execution of his judgments, then to curse them would
be blasphemous; if, on the other hand, we curse them secundem se, i.e.
merely as brute beasts, then the malediction is odious and vain and
therefore unlawful (est odiosum et vanum et per consequens illicitum).
There is, however, another ground, on which the right of excommunication
or anathematization may be asserted and fully vindicated, namely, that the
lower animals are satellites of Satan “instigated by the powers of hell
and therefore proper to be cursed,” as the Doctor angelicus puts it.
Chassenée refers to this opinion in the treatise already cited (I. § 75),
and adds “the anathema then is not to be pronounced against the animals as
such, but should be hurled inferentially (per modum conclusionis) at the
devil, who makes use of irrational creatures to our detriment.” This
notion seems to have been generally accepted in the Middle Ages, and the
fact that evil spirits are often mentioned in the Bible metaphorically or
symbolically as animals and assumed to be incarnate in the adder, the asp,
the basilisk, the dragon, the lion, the leviathan, the serpent, the
scorpion, etc., was considered confirmatory of this view.
But not all animals were regarded as diabolical incarnations; on the
contrary, many were revered as embodiments and emblems of divine
perfections. In a work entitled Le Liure du Roy Modus et de la Reyne
Racio (The Book of King Mode and Queen Reason), which, as the colophon
records, was “printed at Chambery by Anthony Neyret in the year of grace
one thousand four hundred and eighty-six on the thirtieth day of October,”
King Mode discourses on falconry and venery in general. Queen Reason
brings forward, in reply to these rather conventional commonplaces,
“several fine moralities,” and dilates on the natural and mystic qualities
of animals, which she divides into two classes, sweet beasts (bestes
doulces) and stenchy beasts (bestes puantes). Foremost among the sweet
beasts stands that which Milton characterizes as
“Goodliest of all the forest, hart and hind.”
According to the Psalmist, the hart panting after the water-brooks
represents the soul thirsting for the living God and is the type of
religious ardour and aspiration. It plays an important part in the legends
of saints, acts as their guide, shows them where holy relics are
concealed, and causes St. Eustace and St. Hubert to abandon the chase and
to lead lives of pious devotion by appearing to them with a luminous cross
between its antlers. The ten branches of its horns symbolize the ten
commandments of the Old Testament and signify in the Roman ritual the ten
fingers of the outstretched hand of the priest as he works the perpetual
miracle of transubstantiation of the eucharist.
Chief of the stenchy beasts is the pig. In paganism, which to the
Christians was merely devil-worship, the boar was an object of peculiar
adoration; for this reason the farrow of the sow is supposed to number
seven shotes, corresponding to the seven deadly sins. To the same class of
offensive beasts belong the wolf, typical of bad spiritual shepherds, and
the fox, which is described as follows: “Reynard is a beast of small size,
with red hair, a long bushy tail and an evil physiognomy, for his visage
is thin and sharp, his eyes deep-set and piercing, his ears small,
straight and pointed; moreover he is deceitful and tricky above all other
beasts and exceedingly malicious.” “We are all,” adds Queen Reason in a
moralizing strain, “more or less of the brotherhood of Saint Fausset,
whose influence is now-a-days quite extended.” Among birds the raven is
pre-eminently a malodorous creature and imp of Satan, whereas the dove is
a sweet beast and the chosen vessel for the outpouring of the Holy Spirit,
the form in which the third person of the Trinity became incarnate.
This division of beasts corresponds in principle to that which is given in
the Avesta, and according to which all animals are regarded as belonging
either to the good creation of Ahuramazda or to the evil creation of
Angrô-mainyush. The world is the scene of perpetual conflict between these
hostile forces summed up in the religion and ethics of Zarathushtra as the
trinity of the good thought, the good word, and the good deed (humata,
hûkhta, huvarshta), which are to be fostered in opposition to the evil
thought, the evil word, and the evil deed (dushmata, duzhûkhta,
duzhvarshta), which are to be constantly combated and finally
suppressed. Every man is called upon by the Iranian prophet to choose
between these contraries; and not only the present and future state of his
own soul, the complexion of his individual character, but also the welfare
of the whole world, the ultimate destiny of the universe, depend, to no
inconsiderable extent, upon his choice. His thoughts, words, and deeds do
not cease with the immediate effect which they are intended to produce,
but, like force in the physical world, are persistent and indestructible.
As the very slightest impulse given to an atom of matter communicates
itself to every other atom, and thus disturbs the equilibrium of the
globe—the footfall of a child shaking the earth to its centre—so the
influence of every human life, however small, contributes to the general
increase and ascendency of either good or evil, and helps to determine
which of these principles shall ultimately triumph. In the universal
strife of these “mighty opposites,” the vicious are the allies of the
devil; while the virtuous are not merely engaged in working out their own
salvation, but have also the ennobling consciousness of being
fellow-combatants with the Deity, who needs and appreciates their services
in overcoming the adversary. This sense of solidarity with the Best and
the Highest imparts additional elevation and peculiar dignity to human
aims and actions, and lends to devotion a warmth of sympathy and fervour
of enthusiasm springing from personal attachment and loyalty, which it is
difficult for the Religion of Humanity to inspire. The fact, too, that
evil exists in the world, not by the will and design of the Good Being,
but in spite of him, and that all his powers are put forth to eradicate
it, while detracting from his omnipotence, frees him from all moral
obliquity and exalts his character for benevolence, thus rendering him far
more worthy of love and worship and a much better model for human
imitation than that “dreadful idealization of wickedness” which is called
God in the Calvinistic creed. The idea that the humblest person may, by
the purity and rectitude of his life, not only strengthen himself in
virtue, but also increase the actual aggregate of goodness in the universe
and even endue the Deity with greater power and aggressive energy in
subduing and extirpating evil, is surely a sublime thought and a source of
lofty inspiration and encouragement in well-doing, although it has been
degraded by Parsi Dasturs—as all grand conceptions and ideals are apt to
be under priestly influences—into a ridiculous and childish hatred of
snakes, scorpions, frogs, lizards, water-rats, and other animals supposed
to have been produced by Angrô-mainyush.
Plato held a similar theory of creation, regarding it not as the
manifestation of pure benevolence endowed with almighty power, but rather
as the expression of perfect goodness working at disadvantage in an
intractable material, which by its inherent stubbornness prevented the
full embodiment and realization of the original purpose and desire of the
Creator or Cosmourgos, who was therefore obliged to content himself with
what was, under the circumstances, the only possible, but by no means the
best imaginable, world. The Manicheans attributed the same unsatisfactory
result to the activity of an evil principle, which thwarted the complete
actualization of the designs of the Deity. So conspicuous, indeed, is the
defectiveness of nature as a means of promoting the highest conceivable
human happiness, so marked and manifold are the causes of suffering in all
spheres of sentient existence, and so often do the elements seem to
conspire for the destruction of mankind, raging relentlessly like a wild
beast
“Red in tooth and claw
With ravin,”
that every cosmogony has been compelled to assume the persistent
intervention of some malignant spirit or perverse agency as the only
rational explanation of such a condition of things. The orthodox
Christianity of to-day gives over the earth entirely to the sovereignty of
Satan, the successful usurper of Eden, and instead of bidding the
righteous to look forward to the final re-enthronement and absolute
supremacy of truth and goodness in this world as the
“One far-off divine event,
To which the whole creation moves,”
consoles them with the vague promise of compensation in a future state of
being. Even this remote prospect of redemption is confined to a select
few; not only is the earth destined to be burned with fire on account of
its utter corruption, but the great majority of its inhabitants are doomed
to eternal torments in the abode of evil spirits.
Scientific research also leads to the same conclusions in respect to the
incompleteness of Nature’s handiwork, which it is the function of art and
culture to amend and improve. Everywhere the correcting hand and
contriving brain of man are needed to eliminate the worthless and noxious
productions, in which Nature is so fatally prolific, and to foster and
develop those that are useful and salutary, thus beautifying and ennobling
all forms of vegetable and animal life. By a like process man himself has
attained his present pre-eminence. Through long ages of strife and
struggle he has emerged from brutishness and barbarism, and rising by a
slow, spiral ascent, scarcely perceptible for generations, has been able
gradually to
“Move upward, working out the beast,
And let the ape and tiger die.”
The more man increases in wisdom and intellectual capacity, the more
efficient he becomes as a co-worker with the good principle. At the same
time, every advance which he makes in civilization brings with it some new
evil for him to overcome; or, as the Parsi would express it
mythologically, every conquest achieved by Ahuramazda and his allies
stimulates Angrômainyush and his satellites to renewed exertions, who
convert the most useful discoveries, like dynamite, into instruments of
diabolical devastation. The opening of the Far West in the United States
to agriculture and commerce, and the completion of the Pacific Railroad,
not only served to multiply and diffuse the gifts of the beneficent and
bountiful spirit (speñtô mainyush), but also facilitated the propagation
and spread of the plagues of the grasshopper and the Colorado beetle. The
power of destruction insidiously concealed in the minutest insect organism
often exceeds that of the tornado and the earthquake, and baffles the most
persistent efforts of human ingenuity to resist it. The genius and energy
of Pasteur were devoted for years to the task of detecting and destroying
a microscopic parasite, which threatened to ruin for ever the silk
industry of France; and the Phylloxera and Doryphora still continue to
ravage with comparative impunity the vineyards of Europe and the
potato-fields of America, defying at once all the appliances of science
for their extermination and all the attempts of casuistic theology to
reconcile such scourges with a perfectly benevolent and omnipotent Creator
and Ruler of the Universe. It is the observation of phenomena like these
that confirms the modern Parsi in the faith of his fathers, and reveals to
him, in the operations of nature and the conflicts of life, unquestionable
evidences of a contest between warring elements personified as Hormazd
and Ahriman, the ultimate issue of which is to be the complete triumph of
the former and the consequent purification and redemption of the world
from the curse of evil. The Parsi, however, recognizes no Saviour, and
repudiates as absurd and immoral any scheme of atonement whereby the
burden of sin can be shifted from the shoulders of the guilty to those of
an innocent, vicarious victim. Every person must be redeemed by his own
good thoughts, words, and deeds, as creation must be redeemed by the good
thoughts, words, and deeds of the race. After death, the character of each
individual thus formed appears to him, either in the form of a beautiful
and brilliant maiden, who leads him over the Chinvad (or gatherer’s)
bridge, into the realms of everlasting light, or in the form of a foul
harlot, who thrusts him down into regions of eternal gloom.
But to return from this digression; it is not only in the Venidad that
certain classes of animals are declared to be creations of the archfiend,
and therefore embodiments of devils; additional proofs of this doctrine
were derived by mediæval writers from biblical and classical sources. A
favourite example was the metamorphosis of Nebuchadnezzar, who, when given
over to Satan, dwelt with the beasts of the field and ate grass as oxen,
while his hair grew like eagles’ feathers and his nails like birds’
claws. Still more numerous and striking instances of this kind were drawn
from pagan mythology, which, being of diabolical origin, would naturally
be prolific of such phenomena. Thus, besides centaurs and satyrs, “dire
chimeras” and other “delicate monsters,” there were hybrids like the
semi-dragon Cecrops and transformations by which Io became a heifer,
Dædalion a sparrow-hawk, Corone a crow, Actæon a stag, Lyncus a lynx, Mæra
a dog, Calisto a she-bear, Antigone a stork, Arachne a spider, Iphigenia a
roe, Talus a partridge, Itys a pheasant, Tereus Ascalaphus and Nyctimene
owls, Philomela a nightingale, Progne a swallow, Cadmus and his spouse
Harmonia snakes, Decertis a fish, Galanthis a weasel, and the warriors of
Diomedes birds, while the companions of Ulysses were changed by Circe, the
prototype of the modern witch, into swine. All these metamorphoses are
adduced as the results of Satanic agencies and proofs of the tendency of
evil spirits to manifest themselves in bestial forms.
Towards the end of the ninth century the region about Rome was visited by
a dire plague of locusts. A reward was offered for their extermination and
the peasants gathered and destroyed them by millions; but all efforts were
in vain, since they propagated faster than it was possible to kill them.
Finally Pope Stephen VI. prepared great quantities of holy water and had
the whole country sprinkled with it, whereupon the locusts immediately
disappeared. The formula used in consecrating the water and devoting it to
this purpose implies the diabolical character of the vermin against which
it was directed: “I adjure thee, creature water, I adjure thee by the
living God, by Him, who at the beginning separated thee from the dry land,
by the true God, who caused thee to fertilize the garden of Eden and
parted thee into four heads, by Him, who at the marriage of Cana changed
thee into wine, I adjure thee that thou mayst not suffer any imp or
phantom to abide in thy substance, that thou mayst be indued with
exorcising power and become a source of salvation, so that when thou art
sprinkled on the fruits of the field, on vines, on trees, on human
habitations in the city or in the country, on stables, or on flocks, or if
any one may touch or taste thee, thou shalt become a remedy and a relief
from the wiles of Satan, that through thee plagues and pestilence may be
driven away, that through contact with thee weevils and caterpillars,
locusts and moles may be dispersed and the maliciousness of all visible
and invisible powers hostile to man may be brought to nought.” In the
prayers which follow, the water is entreated to “preserve the fruits of
the earth from insects, mice, moles, serpents and other foul spirits.”
This subject was treated in a lively and entertaining manner by a Jesuit
priest, Père Bougeant, in a book entitled Amusement Philosophique sur le
Langage des Bestes, which was written in the form of a letter addressed
to a lady and published at Paris in 1739. In the first place, the author
refers to the intelligence shown by animals and refutes the Cartesian
theory that they are mere machines or animated automata. This tenet, we
may add, was not original with Descartes, but was set forth at length by a
Spanish physician, Gomez Pereira, in a bulky Latin volume bearing the
queer dedicatory title: “Antoniana Margarita opus nempe physicis, medicis
ac theologis non minus utile quam necessarium,” and printed in 1554,
nearly a century before the publication of Descartes’ Meditationes de
prima philosophia and Principia philosophiae, which began a new epoch in
the history of philosophy.
If animals are nothing but ingenious pieces of mechanism, argues the
Jesuit father, then the feelings of a man towards his dog would not differ
from those which he entertains towards his watch, and they would both
inspire him with the same kind of affection. But such is not the case.
Even the strictest Cartesian would never think of petting his chronometer
as he pets his poodle, or would expect the former to respond to his
caresses as the latter does. Practically he subverts his own metaphysical
system by the distinction which he makes between them, treating one as a
machine and the other as a sentient being, endowed with mental powers and
passions corresponding, in some degree, to those which he himself
possesses. We infer from our own individual consciousness that other
persons, who act as we do, are free and intelligent agents, as we claim to
be. The same reasoning applies to the lower animals, whose manifestations
of joy, sorrow, hope, fear, desire, love, hatred and other emotions, akin
to those passing in our own minds, prove that there is within them a
spiritual principle, which does not differ essentially from the human
soul.
But this conclusion, he adds, is contrary to the teachings of the
Christian religion, since it involves the immortality of animal souls and
necessitates some provision for their reward or punishment in a future
life. If they are capable of merits and demerits and can incur praise and
blame, then they are worthy of retribution hereafter and there must be a
heaven and a hell prepared for them, so that the pre-eminence of a man
over a beast as an object of God’s mercy or wrath is lost. “Beasts, in
that case, would be a species of man or men a species of beast, both of
which propositions are incompatible with the teachings of religion.” The
only means of reconciling these views, endowing animals with intellectual
sense and immortal souls without running counter to Christian dogmas, is
to assume that they are incarnations of evil spirits.
Origen held that the scheme of redemption embraced also Satan and his
satellites, who would be ultimately converted and restored to their
primitive estate. Several patristic theologians endorsed this notion, but
the Church rejected it as heretical. The devils are, therefore, from the
standpoint of Catholic orthodoxy, irrevocably damned and the blood of
Christ has made no atonement for them. But, although their fate is sealed
their torments have not yet begun. If a man dies in his sins, his soul, as
soon as it departs from his body, receives its sentence and goes straight
to hell. The highest ecclesiastical authorities have decided that this is
not true of devils, who, although condemned to everlasting fire, do not
enter upon their punishment until after the judgment-day. This view is
supported by many passages and incidents of Holy Writ. Thus Christ
declares that, when the Son of man shall come in his glory, he shall say
unto them on his left hand, “Depart from me, ye cursed, into everlasting
fire prepared for the devil and his angels.” Here it is not stated that
the devils are already burning, but that the fire has been “prepared” for
them, a form of expression which leads us to infer that they were not yet
in it. Again the devils, which Christ drove out of the two “exceeding
fierce” demoniacs, protested against such interference, saying, “Art thou
come hither to torment us before the time?” This question has no
significance, unless we suppose that they had a right to inhabit such
living beings as had been assigned to them, until the time of their
torment should come on the last day. Père Bougeant is furthermore of the
opinion that, when these devils were sent miraculously and therefore
abnormally into the swine, they came into conflict with the devils already
in possession of the pigs, and thus caused the whole herd to run violently
down a steep place into the sea. Even a hog, he thinks, could not stand it
to harbour more than one devil at a time, and would be driven to suicide
by having an intrinsic and superfluous demon conjured into it. A still
more explicit and decisive declaration on this point is found in the
Epistle of Jude and the Second Epistle of Peter, where it is stated that
the angels which kept not their first estate the Lord hath reserved in
everlasting chains under darkness unto the judgment of the great day.
These words are to be understood figuratively as referring to the
irrevocableness of their doom and the durance vile to which they are
meanwhile subjected. That they are held in some sort of temporary custody
and are not actually undergoing, but still awaiting the punishment, which
divine justice has imposed upon them, the sacred scriptures and the
teachings of the Church leave no manner of doubt.
Now the question arises as to what these legions of devils are doing in
the meantime. Some of them are engaged in “going to and fro in the earth
and walking up and down in it,” in order to spy out and take advantage of
human infirmities. God himself makes use of them to test the fealty of men
and their power of holding fast to their integrity under severe
temptations, just as the Creator made fossils and concealed them in the
different strata of the earth, in order to see whether Christian faith in
the truth of revelation would be strong enough to resist the seductions of
“science falsely so called.” Other devils enter into living human bodies
and give themselves up to evil enchantments as wizards and witches; others
still reanimate corpses or assume the form and features of the dead and
wander about as ghosts and hobgoblins. Not only were pagans regarded by
the Christian Church as devil-worshippers and exorcised before being
baptized, but it is also a logical deduction from the doctrine of original
sin, that a devil takes possession of every child as soon as it is born
and remains there until expelled by an ecclesiastical functionary, who
combines the office of priest with that of conjurer and is especially
appointed for this purpose. Hence arose the necessity of abrenunciation,
as it was called, which preceded baptism in the Catholic Church and which
Luther and the Anglican reformers retained. Before the candidate was
christened he was exorcised and adjured personally, if an adult, or
through a sponsor, if an infant, to “forsake the devil and all his works.”
These words, which still hold a place in the ritual, but are now repeated
in a perfunctory manner by persons, who have no conception of the magic
potency formerly ascribed to them, are a survival of the old formula of
exorcism. In the seventeenth century there was a keen competition between
the Roman Catholic and the Lutheran clergy in casting out devils, the
former claiming that to them alone had been transmitted the exorcising
power conferred by Christ upon his apostles. The Protestant churches
finally gave up the hocus-pocus and during the eighteenth century it fell
into general discredit and disuse among them, although some of the
stiffest and most conservative Lutherans never really abandoned it in
principle and have recently endeavoured to revive it in practice.
The Catholic Church, on the contrary, still holds that men, women and
cattle may be possessed by devils and prescribes the means of their
expulsion. In a work entitled Rituale ecclesiasticum ad usum clericorum
S. Fransisci by Pater Franz Xaver Lohbauer (Munich, 1851), there is a
chapter on the mode of helping those who are afflicted by demons (Modus
juvandi afflictos a daemone). The author maintains that nearly all
so-called nervous diseases, hysteria, epilepsy, insanity, and milder forms
of mental alienation, are either the direct result of diabolical agencies
or attended and greatly aggravated by them. A sound mind in a sound body
may make a man devil-proof, but Satan is quick to take advantage of his
infirmities in order to get possession of his person. The adversary is
constantly lying in wait watching for and trying to produce physical
derangements as breaches in the wall, through which he may rush in and
capture the citadel of the soul. In all cases of this sort the priest is
to be called in with the physician, and the medicines are to be blessed
and sprinkled with holy water before being administered. Exorcisms and
conjurations are not only to be spoken over the patient, but also to be
written on slips of consecrated paper and applied, like a plaster, to the
parts especially affected. The physician should keep himself supplied with
these written exorcisms, to be used when it is impossible for a priest to
be present. As with patent medicines, the public is warned against
counterfeits, and no exorcism is genuine unless it is stamped with the
seal and bears the signature of the bishop of the diocese. According to
Father Lohbauer, the demon is the efficient cause of the malady, and there
can be no cure until the evil one is cast out. This is the office of the
priest; the physician then heals the physical disorder, repairing the
damage done to the body, and, as it were, stopping the gaps with his drugs
so as to prevent the demon from getting in again. Thus science and
religion are reconciled and work together harmoniously for the healing of
mankind.
The Catholic Church has a general form of Benedictio a daemone
vexatorum, for the relief of those vexed by demons; and Pope Leo XIII.,
who was justly esteemed as a man of more than ordinary intelligence and
more thoroughly imbued with the modern spirit than any of his
predecessors, composed and issued, November 19, 1890, a formula of
Exorcismus in Satanam et Angelos Apostatas worthy of a place in any
mediæval collection of conjurations. His Holiness never failed to repeat
this exorcism in his daily prayers, and commended it to the bishops and
other clergy as a potent means of warding off the assaults of Satan and of
casting out devils. In 1849 the Bishop of Passau published a Manuale
Benedictionum, and as late as 1893 Dr. Theobald Bischofberger described
and defended the practice of the papal see, in this respect, in a brochure
printed in Stuttgart and entitled Die Verwaltung des Exorcistats nach
Massgabe der römischen Benediktionale.
That these formulas are still deemed highly efficacious is evident from
the many recent cases in which they have been employed. Thus in 1842 a
devil named Ro-ro-ro-ro took possession of “a maiden of angelic beauty” in
Luxemburg and was cast out by Bishop Laurentius. This demon claimed to be
one of the archangels expelled from heaven, and appears to have rivalled
Parson Stöcker and Rector Ahlwardt in Anti-semitic animosity; when the
name of Jesus was mentioned, he cried out derisively: “O, that Jew! Didn’t
he have to drink gall?” When commanded to depart, he begged that he might
go into some Jew. The bishop, however, refused to give him leave and bade
him “go to hell,” which he forthwith did, “moaning as he went, in
melancholy tones, that seemed to issue from the bowels of the earth,
‘Burning, burning, everlastingly burning in hell!’ The voice was so sad,”
adds the bishop, “that we should have wept for sheer compassion, had we
not known that it was the devil.”
Again, a lay brother connected with an educational institute in Rome
became diabolically possessed on January 3, 1887, and was exorcised by
Father Jordan. In this instance the leading spirit was Lucifer himself,
attended by a host of satellites, of whom Lignifex, Latibor, Monitor,
Ritu, Sefilie, Shulium, Haijunikel, Exaltor, and Reromfex were the most
important. It took about an hour and a half to cast out these demons the
first time, but they renewed their assaults on February 10th, 11th, and
17th, and were not completely discomfited and driven back into the
infernal regions until February 23rd, and then only by using the water of
Lourdes, which, as Father Jordan states, acted upon them like poison,
causing them to writhe to and fro. Lucifer was especially rude and saucy
in his remarks. Thus, for example, when Father Jordan said, “Every knee in
heaven and on the earth shall bow to the name of Jesus,” the fallen “Son
of the Morning” retorted, “Not Luci, not Luci—never!”
It would be easy to multiply authentic reports of things of this sort that
have happened within the memory of the present generation, such as the
exorcism of a woman of twenty-seven at Laas in the Tyrol in the spring of
1892, and the expulsion of an evil spirit from a boy ten years of age at
Wemding in Bavaria by a capuchin, Father Aurelian, July 13th and 14th,
1891, with the sanction of the bishops of Augsburg and Eichstätt. In the
latter case we have a circumstantial account of the affair by the exorcist
himself, who, in conclusion, uses the following strong language:
“Whosoever denies demoniacal possession in our days confesses thereby that
he has gone astray from the teaching of the Catholic Church; but he will
believe in it when he himself is in the possession of the devil in hell.
As for myself I have the authority of two bishops.” In a pamphlet on this
subject printed at Munich in 1892, and entitled Die Teufelsaustreibung in
Wemding, the author, Richard Treufels, takes the same view, declaring
that diabolical possession “is an incontestable fact, confirmed by the
traditions of all nations of ancient and modern times, by the unequivocal
testimony of the Old and New Testaments, and by the teaching and practice
of the Catholic Church.” Christ, he says, gave his disciples power and
authority over all devils to cast them out, and the same power is
divinely conferred upon every priest by his consecration, although it is
never to be exercised without the permission of his bishop.
Doubtless modern science by investigating the laws and forces of nature is
gradually diminishing the realm of superstition; but there are vast
low-lying plains of humanity that have not yet felt its enlightening and
elevating influence. It has been estimated that nine-tenths of the rural
population of Europe and ninety-nine hundredths of the peasantry, living
in the vicinity of a cloister and darkened by its shadow, believe in the
reality of diabolical possession and attribute most maladies of men and
murrain in cattle to the direct agency of Satan, putting their faith in
the “metaphysical aid” of the conjurer rather than in medical advice and
veterinary skill.
Unfortunately this belief is not confined to Catholics and boors, but is
held by Protestants, who are considered persons of education and superior
culture. Dr. Lyman Abbott asserted in a sermon preached in Plymouth
Church, that “what we call the impulses of our lower nature are the
whispered suggestions of fiend-like natures, watching for our fall and
exultant if they can accomplish it.” But while affirming that “evil
spirits exercise an influence over mankind,” and that cranks like Guiteau,
the assassin of President Garfield, are diabolically possessed, the
reverend divine would hardly risk his reputation for sanity by attempting
to exorcise the supposed demon. The Catholic priest holds the same view,
but has the courage of his convictions and goes solemnly to work with
bell, book and candle to effect the expulsion of the indwelling fiend.
The fact that such methods of healing are sometimes successful is adduced
as conclusive proof of their miraculous character; but this inference is
wholly incorrect. Professor Dr. Hoppe, in an essay on Der Teufels- und
Geisterglaube und die psychologische Erklärung des Besessenseins
(Allgemeine Zeitschrift für Psychiatrie, Bd. LV. p. 290), gives a
psychological explanation of these puzzling phenomena. “The priest,” he
says, “exerts a salutary influence upon the brain through the respect and
dignity which he inspires, just as Christ in his day wrought upon those
who were sick and possessed with devils.” Indeed, it is expressly stated
by the evangelist that Jesus did not attempt to do wonderful works among
people who did not believe. According to this theory the exorcism effects
a cure by its powerful action on the imagination, just as there are
frequent ailments, for which a wise physician administers bread pills and
a weak solution of powdered sugar as the safest and best medicaments.
Professor Hoppe, therefore, approves of “priestly conjurations for the
expulsion of devils as a psychical means of healing,” and thinks that the
more ceremoniously the rite can be performed in the presence of grave and
venerable witnesses, the more effective it will be. This opinion is
endorsed by a Catholic priest, Friedrich Jaskowski, in a pamphlet entitled
Der Trierer Rock und seine Patienten vom Jahre 1891 (Saarbrücken: Carl
Schmidtke, 1894). The author belongs to the diocese of Trier and is
therefore under the jurisdiction of the bishop, Dr. Felix Korum, whose
statements concerning the miracles wrought and the evidences of divine
mercy manifested during the exhibition of the “holy coat” in 1891 he
courageously reviews and conclusively refutes. The bishop had printed what
he called “documentary proofs,” consisting of certificates issued by
obscure curates and country doctors, that certain persons suffering
chiefly from diseases of the nervous system had been healed, and sought to
discover in these cures the working of divine agencies. Jaskowski shows
that in several instances the persons said to have found relief died
shortly afterwards, and maintains that where cures actually occurred they
“were not due to a miracle or any direct interference of God with the
established order of things, but happened in a purely natural manner.” He
quotes the late Professor Charcot, Dr. Forel, and other neuropathologists
to establish the fact that hetero-suggestion emanating from a physician or
priest, or auto-suggestion originating in the person’s own mind, may
often be the most effective remedy for neurotic disorders of every kind.
In auto-suggestion the patient is possessed with the fixed idea that the
doing of a certain thing, which may be in itself absolutely indifferent,
will afford relief. As an example of this faith-cure Jaskowski refers to
the woman who was diseased with an issue of blood, and approaching Jesus
said within herself: “If I may but touch his garment, I shall be whole.”
This is precisely the position taken by Jesus himself, who turned to the
woman and said: “Daughter, be of good comfort; thy faith hath made thee
whole.” Jaskowski also quotes the declaration of the evangelist referred
to above, that in a certain place the people’s lack of faith prevented
Jesus from doing many wondrous works, and does not deny that on this
principle, which is now recognized by the most eminent physicians, some
few of the hundreds of pilgrims may have been restored to health by
touching the holy coat of Trier; and there is no doubt that the popular
belief in Bishop Korum’s assertion that it is the same garment which Jesus
wore and the woman touched, would greatly increase its healing efficacy
through the force of auto-suggestion (see my article on “Recent
Recrudescence of Superstition” in Appleton’s Popular Science Monthly for
Oct. 1895, pp. 762-66).
The Bishop of Bamberg in Bavaria has been stigmatized as a hypocrite
because he sends the infirm of his flock on a pilgrimage to Lourdes or
Laas or some other holy shrine, while he prefers for himself the profane
waters of Karlsbad or Kissingen. But in so doing he is not guilty of any
inconsistency, since a journey to sacred places and contact with sacred
relics would not act upon him with the same force as upon the ignorant and
superstitious masses of his diocese. His conduct only evinces his
disbelief in the supernatural character of the remedies he prescribes. The
distinguished French physician, Professor Charcot, as already mentioned,
recognized the curative power of faith under certain circumstances, and
occasionally found it eminently successful in hysterical and other purely
nervous affections. In some cases he did not hesitate to prescribe a
pilgrimage to the shrine of any saint for whom the patient may have had a
peculiar reverence; but in no instance in his experience did faith or
exorcism or hagiolatry heal an organic disease, set a dislocated joint or
restore an amputated limb. What Falstaff says of honour is equally true of
faith, it “hath no skill in surgery.”
But to return from this digression, Père Bougeant’s theory of the
diabolical possession of pagans and unbaptized persons would provide for
comparatively few devils, and the gradual diffusion of Christianity would
constantly diminish the supply of human beings available as their proper
habitations. The ultimate conversion of the whole world and the custom of
baptizing infants as soon as they are born would, therefore, produce
serious domiciliary destitution and distress among the evil spirits and
set immense numbers of them hopelessly adrift as vagabonds, and thus
create an extremely undesirable diabolical proletariat. This difficulty is
avoided by assuming that the vast majority of devils are incarnate in the
billions of beasts of all kinds, which dwell upon the earth or fly in the
air or fill the waters of the rivers and the seas. This hypothesis, he
adds, “enables me to ascribe to the lower animals thought, knowledge,
feeling, and a spiritual principle or soul without running counter to the
truths of religion. Indeed, so far from being astonished at their
manifestations of intelligence, foresight, memory and reason, I am rather
surprised that they do not display these qualities in a higher degree,
since their soul is probably far more perfect than ours. Their defects
are, as I have discovered, owing to the fact that in brute as in us, the
mind works through material organs, and inasmuch as these organs are
grosser and less perfect in the lower animals than in man, it follows that
their exhibitions of intelligence, their thoughts and all their mental
operations must be less perfect; and, if these proud spirits are conscious
of their condition, how humiliating it must be for them to see themselves
thus embruted! Whether they are conscious of it or not, this deep
degradation is the first act of God’s vengeance executed on his foes. It
is a foretaste of hell.”
Only by such an assumption, as our author proceeds to show, is it possible
to justify the ways of man to the lower animals and to reconcile his cruel
treatment of them with the goodness of an all-wise and all-powerful maker
and ruler of the universe. For this reason, he goes on to explain, the
Christian Church has never deemed it a duty to take the lower animals
under its protection or to inculcate ordinary natural kindness towards
them. Hence in countries, like Italy and Spain, where the influence of
Catholicism has been supreme for centuries, not only are wild birds and
beasts of chase relentlessly slaughtered and exterminated, but even useful
domestic animals, asses, sumpter-mules and pack-horses, are subjected to a
supererogation of suffering at the hands of ruthless man. As the pious
Parsi conscientiously comes up to the help of Ahuramazda against the
malevolent Angrô-mainyush by killing as many as possible of the creatures
which the latter has made, so the good Catholic becomes an efficient
co-worker with God by maltreating brutes and thus aiding the Almighty in
punishing the devils, of which they are the visible and bruisable forms.
Whatever pain is inflicted is felt, not by the physical organism, but by
the animated spirit. It is the embodied demon that really suffers, howling
in the beaten dog and squealing in the butchered pig.
There are doubtless many persons of tender susceptibilities, who cannot
bear to think that the animals, whose daily companionship we enjoy, the
parrot we feed with sugar, the pretty pug we caress and the noble horse,
which ministers to our comfort and convenience, are nothing but devils
predestined to everlasting torture. But these purely sentimental
considerations are of no weight in the scale of reason. “What matters it,”
replies the Jesuit Father, “whether it is a devil or another kind of
creature that is in our service or contributes to our amusement? For my
part, this idea pleases rather than repels me; and I recognize with
gratitude the beneficence of the Creator in having provided me with so
many little devils for my use and entertainment. If it be said that these
poor creatures, which we have learned to love and so fondly cherish, are
fore-ordained to eternal torments, I can only adore the decrees of God,
but do not hold myself responsible for the terrible sentence; I leave the
execution of the dread decision to the sovereign judge and continue to
live with my little devils, as I live pleasantly with a multitude of
persons, of whom, according to the teachings of our holy religion, the
great majority will be damned.” The crafty disciple of Loyola, elusive of
disagreeable deductions, is content to accept the poodle in its phenomenal
form and to make the most of it, without troubling himself about “des
Pudels Kern.”
This doctrine, he thinks, is amply illustrated and confirmed by an appeal
to the consentient opinion of mankind or the argument from universal
belief, which has been so often and so effectively urged in proof of the
existence of God. If the maxim universitas non delinquit has the same
validity in the province of philosophy as in that of law, then we are
justified in assuming that the whole human race cannot go wrong even in
purely metaphysical speculation and that unanimity in error is a
psychological impossibility. The criterion of truth, quod semper, quod
ubique, quod ab omnibus, by which the Roman hierarchy is willing to have
its claims to ecclesiastical catholicity and doctrinal orthodoxy tested,
is confined to Christendom in its application and does not consider the
views of persons outside of the body of believers. In the question under
discussion the argument is not subject to such limitations, but gathers
testimony from all races and religions, showing that there is not a
civilized nation or savage tribe on the face of the earth, which does not
regard or has not regarded the lower animals as embodiments of evil
spirits and sought to propitiate them. That “the devil is an ass” is a
truth so palpable that it has passed into a proverb. Baal-zebub means
fly-god; and the Christian Satan betrays his presence by the cloven foot
of the goat or the solid hoof of the horse. In folk-lore, which is the
débris of exploded mythologies adrift on the stream of popular
tradition, cats, dogs, otters, apes, ravens, blackcocks, capercailzies,
rabbits, hedgehogs, wolves, were-wolves, foxes, polecats, swine, serpents,
toads, and countless varieties of insects, reptiles and vermin figure as
incarnations and instruments of the devil; and Mephistopheles reveals
himself to Faust as
“Der Herr der Ratten und der Mäuse,
Der Fliegen, Frösche, Wanzen, Läuse.”
“The Lord of rats and of the mice,
Of flies and frogs, bed-bugs and lice.”
The worship of animals originates in the belief that they are embodiments
of devils, so that zoölatry, which holds such a prominent place in
primitive religions, is only a specific form of demonolatry. The objection
that a flea or a fly, a mite or a mosquito is too small a creature to
furnish fit lodgment for a demon, Father Bougeant dismisses with an
indulgent smile and disparaging shrug as implying a gross misconception of
the nature and properties of spirit, which is without extension or
dimension and therefore capable of animating the most diminutive particle
of organized matter. Large and little are purely relative terms. God, he
says, could have made man as small as the tiniest puceron without any
decrease of his spiritual powers. “It is, therefore, no more difficult to
believe that a devil may be incorporated in the delicate body of a gnat
than in the huge bulk of an elephant.” The size of the physical
habitation, in which spirits take up their temporary abode, is a thing of
no consequence. In fact, devils in the forms of gnats and tiny insects
were thought to be especially dangerous, since one might swallow them
unawares and thus become diabolically possessed. The demon, liberated by
the death and dissolution of the insect, was supposed to make a tenement
of the unfortunate person’s stomach, producing gripes and playing
ventriloquous tricks. Thus it is recorded in the Dies Caniculuares of
Majolus (Meyer: Der Aberglaube des Mittelalters, p. 296-7) that a young
maiden in the Erzgebirge near Joachimsthal, in 1559, swallowed a fly,
while drinking beer. The evil spirit, incarnate in the fly, took
possession of the maiden and began to speak out of her, thus attracting
crowds of people, who put questions to the devil and tried to drive him
out by prayers, in which the unhappy girl sometimes joined, greatly to her
discomfort, since the devil waxed exceeding wroth and unruly and caused
her much suffering, whenever she uttered the name of Christ. Finally the
parish priest had her brought into the church, where he succeeded with
considerable difficulty in exorcising her. The stubborn demon resisted for
two years all efforts to cast him out; he even tried to compromise with
the girl, promising to be content with a finger nail or a single hair of
her head, but she declined all overtures, and he was at last expelled by
means of a potent conjuration, which lasted from midnight till midday.
As the human soul is released by death, so the extinction of life in any
animal sets its devil free, who, instead of entering upon a spiritual
state of existence, goes into the egg or embryo of another animal and
resumes his penal bondage to the flesh. “Thus a devil, after having been a
cat or a goat, may pass, not by choice, but by constraint, into the embryo
of a bird, a fish or a butterfly. Happy are those who make a lucky hit and
become household pets, instead of beasts of burden or of slaughter. The
lottery of destiny bars them the right of voluntary choosing.” The
doctrine of transmigration, continues our author, “which Pythagoras taught
of yore and some Indian sages hold to-day, is untenable in its application
to men and contrary to religion, but it fits admirably into the system
already set forth concerning the nature of beasts, and shocks neither our
faith nor our reason.” Furthermore, it explains why “all species of
animals produce many more eggs or embryos than are necessary to propagate
their kind and to provide for a normal increase.” Of the millions of
germs, of which “great creating nature” is so prolific, comparatively few
ever develop into living creatures; only those which are vivified by a
devil are evolved into complete organisms; the others perish. This seeming
superfluity and waste can be most easily reconciled with the careful
economy and wise frugality of nature by viewing it as a manifestation of
the bountiful and beneficent providence of God in preventing “any lack of
occupation or abode on the part of the devils,” which are being constantly
disembodied and re-embodied. “This accounts for the prodigious clouds of
locusts and countless hosts of caterpillars, which suddenly desolate our
fields and gardens. The cause of these astonishing multiplications has
been sought in cold, heat, rain and wind, but the real reason is that, at
the time of their appearance, extraordinary quantities of animals have
died or their embryos been destroyed, so that the devils that animated
them were compelled to avail themselves at once of whatever species they
found most ready to receive them, which would naturally be the
superabundant eggs of insects.” The more profoundly this subject is
investigated, he concludes, and the more light our observations and
researches throw upon it from all sides, the more probable does the
hypothesis here suggested in explanation of the puzzling phenomena of
animal life and intelligence appear.
Father Bougeant calls his lucubration “a new system of philosophy”; but
this is not strictly true. He has only given a fuller and more facetious
exposition of a doctrine taught by many of the greatest lights of the
Catholic Church, among others by Thomas Aquinas, whose authority as a
thinker Pope Leo XIII. distinctly recognized and earnestly sought to
restore to its former prestige. Bougeant’s ingenious dissertation has a
vein of irony or at least a strain of jocundity in it, approaching at
times so perilously near the fatal brink of persiflage, that one cannot
help surmising an intention to render the whole thing ridiculous in a
witty and underhand way eminently compatible with Jesuitical habits of
mind; but whether serious or satirical, his treatise is an excellent
example and illustration of the kind of dialectic hair-splitting and
syllogistic rubbish, which passed for reasoning in the early and middle
ages of the Christian era, and which the greatest scholars and acutest
intellects of those days fondly indulged in and seem to have been fully
satisfied with. Here, too, we come upon the metaphysical and theological
groundwork, upon which was reared by a strictly logical process a vast
superstructure of ecclesiastical excommunication and criminal prosecution
against bugs and beasts. He protests with never-tiring and needless
iteration his absolute devotion to the precepts of religion; indeed, like
the lady in the play, he “protests too much, methinks.” In all humbleness
and submission he bows to the authority of the Church, and would not touch
the ark of the covenant even with the tip of his finger, but his easy
acquiescence has an air of perfunctoriness, and in his assenting lips
there lurks a secret, semi-sarcastic leer, which casts suspicion on his
words and looks like poking fun at the principles he professes and turning
them into raillery.
Indeed, such covert derision would have been a suitable way of ridiculing
the gross popular superstition of his time, which saw a diabolical
incarnation in every unfamiliar form of animal life. During the latter
half of the sixteenth century a Swiss naturalist named Thurneysser, who
held the position of physician in ordinary to the Elector Johann Georg von
Brandenburg, kept some scorpions bottled in olive oil, which were feared
by the common people as terrible devils endowed with magic power
(fürchterliche Zauberteufel). Thurneysser presented also to Basel, his
native city, a large elk, which had been given to him by Prince Radziwil;
but the good Baselers looked upon the strange animal as a most dangerous
demon, and a pious old woman finally rid the town of the dreaded beast by
feeding it with an apple stuck full of broken needles.
A distinguished Spanish theologian of the sixteenth century, Martin
Azpilcueta, commonly known as Dr. Navarre, refers, in his work on
excommunication, to a case in which anathemas were fulminated against
certain large sea-creatures called terones, which infested the waters of
Sorrento and destroyed the nets of the fishermen. He speaks of them as
“fish or cacodemons” (pisces seu cacodemones), and maintains that they
are subject to anathematization, not as fish, but only as devils. In his
Five Counsels and other tractates on this subject (Opera, Lyons, 1589;
reprinted at Venice, 1601-2, and at Cologne, 1616) he often takes issue
with Chassenée on minor points, but the French jurist and the Spanish
divine agree on the main question.
In this connection it may be a matter of interest to add, that a German
neuropathologist of our own day, Herr von Bodelschwingh, ascribes epilepsy
to what he calls “demonic infection” due to the presence of the bacillus
infernalis in the blood of those who are subject to this disease. The
microbe, to which the jocose scientist has been pleased to give this name,
differs from all other bacilli hitherto discovered in having two horns and
a tail, although the most powerful lenses have not yet revealed any traces
of a cloven foot. An additional indication of its infernal qualities is
the fact that it liquefies the gelatine, with which it comes in contact,
and turns it black, emitting at the same time a pestilential stench.
Doubtless this discovery will be hailed by theologians as a striking
confirmation of divine revelation by modern science, proving that our
forefathers were right in attributing the falling-sickness to diabolical
agencies. We know now that it was a legion of bacilli infernales which
went out of the tomb-haunting man into the Gadarene swine and drove them
tumultuously over a precipice into the sea. In fact, who can tell what
microbes really are! Père Bougeant would certainly have regarded them as
nothing less than microscopic devils.
The Savoyan jurist, Gaspard Bailly, in the second part of the disquisition
entitled Traité des Monitoires, already mentioned, treats “Of the
Excellence of Monitories” and discusses the main points touching the
criminal prosecution and punishment of insects. He begins by saying that
“one should not contemn monitories (a general term for anathemas, bans and
excommunications), seeing that they are matters of great importance,
inasmuch as they bear with them the deadliest sword, wielded by our holy
mother, the Church, to wit, the power of excommunication, which cutteth
the dry wood and the green, sparing neither the quick nor the dead, and
smiting not only rational beings, but turning its edge also against
irrational creatures; since it hath been shown at sundry times and in
divers places, that worms and insects, which were devouring the fruits of
the earth, have been excommunicated and, in obedience to the commands of
the Church, have withdrawn from the cultivated fields to the places
prescribed by the bishop who had been appointed to adjudge and to adjure
them.”
M. Bailly then cites numerous instances of this kind, in which a writer on
logic would find ample illustrations of the fallacy known as post hoc,
ergo propter hoc. Thus in the latter half of the fifteenth century,
during the reign of Charles the Bold, Duke of Burgundy, a plague of
locusts threatened the province of Mantua in Northern Italy with famine,
but were dispersed by excommunication. He quotes some florid lines from
the poet Altiat descriptive of these devastating swarms, which “came,
after so many other woes, under the leadership of Eurus (i.e. brought by
the east wind), more destructive than the hordes of Attila or the camps of
Corsicans, devouring the hay, the millet and the corn, and leaving only
vain wishes, where the hopes of August stood.” Again in 1541, a cloud of
locusts fell upon Lombardy, and by destroying the crops, caused many
persons to perish with hunger. These insects “were as long as a man’s
finger, with large heads and bellies filled with vileness; and when dead
they infected the air and gave forth a stench, which even carrion kites
and carnivorous beasts could not endure.” Another instance is given, in
which swarms of four-winged insects came from Tartary, identified in the
popular mind with Tartarus, obscuring the sun in their flight and covering
the plains of Poland a cubit deep. In the year 1338, on St. Bartholomew’s
Day, these creatures began to devastate the region round Botzen in the
Tyrol, consuming the crops and laying eggs and leaving a numerous progeny,
which seemed destined to continue the work of destruction indefinitely. A
prosecution was therefore instituted against them before the
ecclesiastical court at Kaltern, a large market-town about ten miles south
of Botzen, then as now famous for its wines, and the parish priest
instructed to proceed against them with the sentence of excommunication in
accordance with the verdict of the tribunal. This he did by the solemn
ceremony of “inch of candle,” and anathematized them “in the name of the
Blessed Trinity, Father, Son and Holy Ghost.” Owing to the sins of the
people and their remissness in the matter of tithes the devouring insects
resisted for a time the power of the Church, but finally disappeared.
Under the reign of Lotharius II., early in the twelfth century, enormous
quantities of locusts, “having six wings with two teeth harder than flint”
and “darkening the sky and whitening the air like a snowstorm,” laid waste
the most fertile provinces of France. Many of them perished in the rivers
and the sea, and being washed ashore sent forth a putrescent smell and
produced a fearful pestilence. Precisely the same phenomenon, with like
disastrous results, is described by St. Augustine in the last book of De
Civitate Dei as having occurred in Africa and caused the death of 800,000
persons.
In the majority of cases adduced there is no evidence that the Church
intervened at all with its fulminations, and, even when the anathema was
pronounced, the insects appear to have departed of their own free-will
after having eaten up every green thing and reduced the inhabitants to
the verge of starvation; and yet M. Bailly, supposed to be a man of
judicial mind, disciplined by study, accustomed to reason and to know what
sound reasoning is, goes on giving accounts of such scourges, as though
they proved in some mysterious way the effectiveness of ecclesiastical
excommunications and formed a cumulative argument in support of such
claims.
The most important portion of M. Bailly’s work is that in which he shows
how actions of this kind should be brought and conducted, with specimens
of plaints, pleas, replications, rejoinders, and decisions. First in order
comes the petition of the inhabitants seeking redress (requeste des
habitans), which is followed in regular succession by the declaration or
plea of the inhabitants (plaidoyer des habitans), the defensive
allegation or plea for the insects (plaidoyer pour les insectes), the
replication of the inhabitants (réplique des habitans), the rejoinder of
the defendant (réplique du defendeur), the conclusions of the bishop’s
proctor (conclusions du procureur episcopal), and the sentence of the
ecclesiastical judge (sentence du juge d’église), which is solemnly
pronounced in Latin. The pleadings on both sides are delivered in French
and richly interlarded with classical allusions and Latin quotations,
being even more heavily weighted with the spoils of erudition than the set
speech of a member of the British Parliament.
The following abridgment of the plea, in which the prosecuting attorney
sets forth the cause of complaint, is a fair specimen of the forensic
eloquence displayed on such occasions:
“Gentlemen, these poor people on their knees and with tearful eyes, appeal
to your sense of justice, as the inhabitants of the islands Majorica and
Minorica formerly sent an embassy to Augustus Cæsar, praying him for a
cohort of soldiers to exterminate the rabbits, which were burrowing in
their fields and consuming their crops. In the power of excommunication
you have a weapon more effective than any wielded by that emperor to save
these poor suppliants from impending famine produced by the ravages of
little beasts, which spare neither the corn nor the vines, ravages like
those of the boar that laid waste the environs of Calydon, as related by
Homer in the first book of the Iliad, or those of the foxes sent by
Themis to Thebes, which destroyed the fruits of the earth and the cattle
and assailed even the husbandmen themselves. You know how great are the
evils which famine brings with it, and you have too much kindness and
compassion to permit my clients to be involved in such distress, thus
constraining them to perpetrate cruel and unlawful deeds; nec enim
rationem patitur, nec ulla aequitate mitigatur, nec prece ulla flectitur
esuriens populus: for a starving people is not amenable to reason, nor
tempered by equity, nor moved by any prayer. Witness the mothers, of whom
it is recorded in the Fourth Book of the Kings, that they ate their own
children, the one saying to the other: ‘Give thy son that we may eat him
to-day, and we will eat my son tomorrow.’” The advocate then discourses at
length of the horrors of hunger and its disastrous effects upon the
individual and the community, lugging in what Milton calls a “horse-load
of citations” from Arianus Marcellinus, Ovid and other Latin prosaists and
poets, introduces an utterly irrelevant allusion to Joshua and the crafty
Gibeonites, and concludes as follows: “The full reports received as the
result of an examination of the fields, made at your command, suffice for
your information concerning the damage done by these animals. It remains,
therefore, after complying with the usual forms, only to adjudicate upon
the case in accordance with the facts stated in the Petition of the
Plaintiffs, which is right and reasonable, and, to this effect, to enjoin
these animals from continuing their devastations, ordering them to quit
the aforesaid fields and to withdraw to the place assigned them,
pronouncing the necessary anathemas and execrations prescribed by our Holy
Mother, the Church, for which your petitioners do ever pray.”
It is doubtful whether any speaking for Buncombe in the halls of Congress
or any spouting of an ignorant bumpkin in the moot-court of an American
law-school ever produced such a rhetorical hotchpotch of “matter and
impertinency mixed” as the earnest plea, of which the above is a brief
abstract.
Rather more to the point, but equally overburdened with legal lore and
literary pedantry, is the rejoinder of the counsel for the insects:
“Gentlemen, inasmuch as you have chosen me to defend these little beasts
(bestioles), I shall, an it please you, endeavour to right them and to
show that the manner of proceeding against them is invalid and void. I
confess that I am greatly astonished at the treatment they have been
subjected to and at the charges brought against them, as though they had
committed some crime. Thus information has been procured touching the
damage said to have been done by them; they have been summoned to appear
before this court to answer for their conduct, and, since they are
notoriously dumb, the judge, wishing that they should not suffer wrong on
account of this defect, has appointed an advocate to speak in their behalf
and to set forth in conformity with right and justice the reasons, which
they themselves are unable to allege.
“Since you have permitted me to appear in defence of these poor animals, I
will state, in the first place, that the summons served on them is null
and void, having been issued against beasts, which cannot and ought not to
be cited before this judgment seat, inasmuch as such a procedure implies
that the parties summoned are endowed with reason and volition and are
therefore capable of committing crime. That this is not the case with
these creatures is clear from the paragraph Si quadrupes, etc., in the
first book of the Pandects, where we find these words: Nec enim potest
animal injuriam fecisse, quod sensu caret.
“The second ground, on which I base the defence of my clients, is that no
one can be judicially summoned without cause, and whoever has had such a
summons served renders himself liable to the penalty prescribed by the
statute De poen. tem. litig. As regards these animals there is no causa
justa litigandi; they are not bound in any manner, non tenentur ex
contractu, being incompetent to make contracts or to enter into any
compact or covenant whatsoever, neque ex quasi contractu, neque ex
stipulatione, neque ex pacto, and still less ex delicto seu quasi,
can there be any question of a delict or any semblance thereof, since, as
has just been shown, the rational faculties essential to the capability of
committing criminal actions are wanting.
“Furthermore, it is illicit to do that which is nugatory and of non-effect
(qui ne porte coup); in this respect justice is like nature, which, as
the philosopher affirms, does nothing mal à propos or in vain: Deus
enim et Natura nihil operantur frustra. Now I leave it to you to decide
whether anything could be more futile than to summon these irrational
creatures, which can neither speak for themselves, nor appoint proxies to
defend their cause; still less are they able to present memorials stating
grounds of their justification. If then, as I have shown, the summons,
which is the basis of all judicial action, is null and void, the
proceedings dependent upon it will not be able to stand: cum enim
principalis causa non consistat, neque ea quae consequuntur locum
habent.”
The counsel for the defence rests his argument, of which the extract just
given may suffice as a sample, upon the irrationality and consequent
irresponsibility of his clients. For this reason he maintains that the
judge cannot appoint a procurator to represent them, and cites legal
authorities to show that the incompetency of the principal implies the
incompetency of the proxy, in conformity with the maxim: quod directe
fieri prohibetur, per indirectum concedi non debet. In like manner the
invalidity of the summons bars any charge of contempt of court and
condemnation for contumacy. Furthermore, the very nature of
excommunication is such that it cannot be pronounced against them, since
it is defined as extra ecclesiam positio, vel è qualibet communione, vel
quolibet legitimo actu separatio. But these animals cannot be expelled
from the Church, because they are not members of it and do not fall under
its jurisdiction, as the apostle Paul says: “Ye judge them that are
within and not them also that are without.” Excommunicatio afficit
animam, non corpus, nisi per quandam consequentiam, cujus medicina est.
The animal soul, not being immortal, cannot be affected by such sentence,
which involves the loss of eternal salvation (quae vergit in dispendium
aeternae salutis).
A still more important consideration is that these insects are only
exercising an innate right conferred upon them at their creation, when God
expressly gave them “every green herb for meat,” a right which cannot be
curtailed or abrogated, simply because it may be offensive to man. In
support of this view he quotes passages from Cicero’s treatise De
Officiis, the Epistle of Jude and the works of Thomas Aquinas. Finally,
he maintains that his clients are agents of the Almighty sent to punish us
for our sins, and to hurl anathemas against them would be to fight against
God (s’en prendre à Dieu), who has said: “I will send wild beasts among
you, which shall destroy you and your cattle and make you few in number.”
That all flesh has corrupted its way upon the earth, he thinks is as true
now as before the deluge, and cites about a dozen lines from the
Metamorphoses of Ovid in confirmation of this fact. In conclusion he
demands the acquittal of the defendants and their exemption from all
further prosecution.
The prosecuting attorney in his replication answers these objections in
regular order, showing, in the first place, that, while the law may not
punish an irrational creature for a crime already committed, it may
intervene, as in the case of an insane person, to prevent the commission
of a crime by putting the madman in a strait-jacket or throwing him into
prison. He elucidates this principle by a rather far-fetched illustration
from the legal enactments concerning betrothal and breach of promise of
marriage. “It follows then inferentially that the aforesaid animals can be
properly summoned to appear and that the summons is valid, inasmuch as
this is done in order to prevent them from causing damage henceforth
(d’ores en avant) and only incidentally to punish them for injuries
already inflicted.”
“To affirm that such animals cannot be anathematized and excommunicated is
to doubt the authority conferred by God upon his dear spouse, the Church,
whom he has made the sovereign of the whole world, having, in the words of
the Psalmist, put all things under her feet, all sheep and oxen, the
beasts of the field, the fowl of the air, the fish of the sea and
whatsoever passeth through the paths of the seas. Guided by the Holy
Spirit she does nothing unwisely; and if there is anything in which she
should show forth her power it is in protecting and preserving the most
perfect work of her heavenly husband, to wit, man, who was made in the
divine image and likeness.” The orator then dilates on the grandeur and
glory of man and interlards his harangue with quotations from sacred and
profane writers, Moses, Paul, Pliny, Ovid, Silius Italicus and Pico di
Mirandola, and declares that nothing could be more absurd than to deprive
such a being of the fruits of the earth for the sake of “vile and paltry
vermin.” In reply to the statement of Thomas Aquinas, quoted by the
counsel for the defence, that it is futile to curse animals as such, the
plaintiffs’ advocate says that they are not viewed merely as animals, but
as creatures doing harm to man by eating and wasting the products of the
soil designed for human sustenance; in other words he ascribes to them a
certain diabolical character. “But why dwell upon this point, since
besides the instances recorded in Holy Writ, in which God curses inanimate
things and irrational creatures, we have an infinite number of examples of
holy men, who have excommunicated noxious animals. It will suffice to
mention one familiar to us all and constantly before our eyes in the town
of Aix, where St. Hugon, Bishop of Grenoble, excommunicated the serpents,
which infested the warm baths and killed many of the inhabitants by biting
them. Now it is well known, that if the serpents in that place or in the
immediate vicinity bite any one, the bite is no longer fatal. The venom of
the reptile was stayed and annulled by virtue of the excommunication, so
that no hurt ensues from the bite, although the bite of the same kind of
serpent outside of the region affected by the ban, is followed by death.”
That serpents and other poisonous reptiles could be deprived of their
venom by enchantment and thus rendered harmless is in accord with the
teachings of the Bible. Thus we read in Ecclesiastes (x. 11): “Surely the
serpent will bite without enchantment,” i.e. unless it be enchanted and
its bite disenvenomed. A curious superstition concerning the adder is
referred to in the Psalms (lviii. 4, 5), where the wicked are said to be
“like the deaf adder that stoppeth her ear; which will not hearken to the
voice of charmers, charming never so wisely.” The Lord is also represented
by Jeremiah (viii. 17) as threatening to “send serpents, cockatrices,
among you, which will not be charmed, and they shall bite you.” It does
not seem to have occurred to the prosecutor that the defendants might be
locusts, which would not be excommunicated.
The objection that God has sent these insects as a scourge, and that to
anathematize them would be to fight against him, is met by saying that to
have recourse to the offices of the Church is an act of religion, which
does not resist, but humbly recognizes the divine will and makes use of
the means appointed for averting the divine wrath and securing the divine
favour.
After the advocates had finished their pleadings, the case was summed up
by the episcopal procurator substantially as follows:
“The arguments offered by the counsel for the defence against the
proceedings instituted by the inhabitants as complainants are worthy of
careful consideration and deserve to be examined soberly and maturely,
because the bolt of excommunication should not be hurled recklessly and at
random (à la volée), being a weapon of such peculiar energy and activity
that, if it fails to strike the object against which it is hurled, it
returns to smite him, who hurled it.” [This notion that an anathema is a
dangerous missile to him who hurls it unlawfully or for an unjust purpose,
retroacting like an Australian boomerang, survives in the homely proverb:
“Curses, like chickens, come home to roost.”] The bishop’s proctor reviews
the speeches of the lawyers, but seems to have his brains somewhat muddled
by them. “It is truly a deep sea,” he says, “in which it is impossible to
touch bottom. We cannot tell why God has sent these animals to devour the
fruits of the earth; this is for us a sealed book (lettres closes).” He
suggests it may be “because the people turn a deaf ear to the poor begging
at their doors,” and goes off into a long eulogy on the beauty of charity,
with an anthology of extracts from various writers in praise of
alms-giving, among which is one from Eusebius descriptive of hell as a
cold region, where the wailing and gnashing of teeth are attributed to
the torments of eternal frost instead of everlasting fire (liberaberis ab
illo frigore, in quo erit fletus et stridor dentium). Again, the plague
of insects may be due to irreverence shown in the churches, which, he
declares, have been changed from the house of God into houses of
assignation. On this point he quotes from Tertullian, Augustine, and Numa
Pompilius, and concludes by recommending that sentence of excommunication
be pronounced upon the insects, and that the prayers and penances,
customary in such cases, be imposed upon the inhabitants.
After this discourse, which reads more like a homily from the pulpit than
a plea at the bar and in the mouth of the bishop’s proctor is simply an
oratio pro domo, the official gave judgment in favour of the plaintiffs.
The sentence, which was pronounced in Latin befitting the dignity and
solemnity of the occasion, condemned the defendants to vacate the premises
within six days on pain of anathema.
The official begins by stating the case as that of “The People versus
Locusts,” declaring that the guilt of the accused has been clearly proved
“by the testimony of worthy witnesses and, as it were, by public rumour,”
and inasmuch as the people have humbled themselves before God and
supplicated the Church to succour them in their distress, it is not
fitting to refuse them help and solace. “Walking in the footsteps of the
fathers, sitting on the judgment-seat, having the fear of God before our
eyes and confiding in his mercy, relying on the counsel of experts, we
pronounce and publish our sentence as follows:
“In the name and by virtue of God, the omnipotent, Father, Son and Holy
Spirit, and of Mary, the most blessed Mother of our Lord Jesus Christ, and
by the authority of the holy apostles Peter and Paul, as well as by that
which has made us a functionary in this case, we admonish by these
presents the aforesaid locusts and grasshoppers and other animals by
whatsoever name they may be called, under pain of malediction and anathema
to depart from the vineyards and fields of this district within six days
from the publication of this sentence and to do no further damage there or
elsewhere.” If, on the expiration of this period, the animals have refused
to obey this injunction, then they are to be anathematized and accursed,
and the inhabitants of all classes are to beseech “Almighty God, the
dispenser of all good gifts and the dispeller of all evils,” to deliver
them from so great a calamity, not forgetting to join with devout
supplications the performance of all good works and especially “the
payment of tithes without fraud according to the approved custom of the
parish, and to abstain from blasphemies and such other sins as are of a
public and particularly offensive character.”
(Vide Appendix B.)
It is doubtful whether one could find in the ponderous tomes of scholastic
divinity anything surpassing in comical non sequiturs and sheer nonsense
the forensic eloquence of eminent lawyers as transmitted to us in the
records of legal proceedings of this kind. Although the counsel for the
defendants, as we have seen, ventured to question the propriety and
validity of such prosecutions, his scepticism does not seem to have been
taken seriously, but was evidently smiled at as the trick of a pettifogger
bound to use every artifice to clear his clients. In the writings of
mediæval jurisprudents the right and fitness of inflicting judicial
punishment upon animals appear to have been generally admitted. Thus Guy
Pape, in his Decisions of the Parliament of Grenoble (Qu. 238), raises
the query, whether a brute beast, if it commit a crime, as pigs sometimes
do in devouring children, ought to suffer death, and answers the question
unhesitatingly in the affirmative: “si animal brutum delinquat, sicut
quandoque faciunt porci qui comedunt pueros, an debeat mori? Dico quod
sic.” Jean Duret, in his elaborate Treatise on Pains and Penalties
(Traicté des Peines et des Amendes, p. 250; cf. Thémis Jurisconsulte,
VIII. p. 57), takes the same view, declaring that “if beasts not only
wound, but kill and eat any person, as experience has shown to happen
frequently in cases of little children being eaten by pigs, they should
pay the forfeit of their lives and be condemned to be hanged and
strangled, in order to efface the memory of the enormity of the deed.” The
distinguished Belgian jurist, Jodocus Damhouder, discusses this question
in his Rerum Criminalium Praxis (cap. CXLII.), and holds that the beast
is punishable, if it commits the crime through natural malice, and not
through the instigation of others, but that the owner can redeem it by
paying for the damage done; nevertheless he is not permitted to keep
ferocious or malicious beasts and let them run at large, so as to be a
constant peril to the community. Occasionally a more enlightened jurist
had the common-sense and courage to protest against such perversions and
travesties of justice. Thus Pierre Ayrault, lieutenant-criminel au siége
présidial d’Angers, published at Angers, in 1591, a small quarto
entitled: Des Procez faicts au Cadaver, aux Cendres, à la Mémoire, aux
Bestes brutes, aux Choses inanimées et aux Contumax, in which he argued
that corpses, the ashes and the memory of the dead, brute beasts and
inanimate things are not legal persons (legales homines) and therefore
do not come within the jurisdiction of a court. Curiously enough a case
somewhat analogous to those discussed by Pierre Ayrault was adjudicated
upon only a few years ago. A Frenchman bequeathed his property to his own
corpse, in behalf of which his entire estate was to be administered, the
income to be expended for the preservation of his mortal remains and the
adornment of the magnificent mausoleum in which they were sepulchred. His
heirs-at-law contested the will, which was declared null and void by the
court on the ground that “a subject deprived of individuality or of civil
personality” could not inherit. The same principle would apply to the
infliction of penalties upon such subjects. The only kind of legacy that
will cause a man’s memory to be cherished is the form of bequest which
makes the public weal his legatee. The Chinese still hold to the barbarous
custom of bringing corpses to trial and passing sentence upon them. On the
6th of August, 1888, the cadaver of a salt-smuggler, who was wounded in
the capture and died in prison, was brought before the criminal court in
Shanghai and condemned to be beheaded. This sentence was carried out by
the proper officers on the place of execution outside of the west gate of
the city.
Felix Hemmerlein, better known as Malleolus, a distinguished doctor of
canon law and proto-martyr of religious reform in Switzerland, states in
his Tractatus de Exorcismis, that in the fourteenth century the peasants
of the Electorate of Mayence brought a complaint against some Spanish
flies, which were accordingly cited to appear at a specified time and
answer for their conduct; but “in consideration of their small size and
the fact that they had not yet reached their majority,” the judge
appointed for them a curator, who “defended them with great dignity”; and,
although he was unable to prevent the banishment of his wards, he obtained
for them the use of a piece of land, to which they were permitted
peaceably to retire. How they were induced to go into this insect
reservation and to remain there we are not informed. The Church, as
already stated, claimed to possess the power of effecting the desired
migration by means of her ban. If the insects disappeared, she received
full credit for accomplishing it; if not, the failure was due to the sins
of the people; in either case the prestige of the Church was preserved and
her authority left unimpaired.
In 1519, the commune of Stelvio, in Western Tyrol, instituted criminal
proceedings against the moles or field-mice,[3] which damaged the crops
“by burrowing and throwing up the earth, so that neither grass nor green
thing could grow.” But “in order that the said mice may be able to show
cause for their conduct by pleading their exigencies and distress,” a
procurator, Hans Grinebner by name, was charged with their defence, “to
the end that they may have nothing to complain of in these proceedings.”
Schwarz Mining was the prosecuting attorney, and a long list of witnesses
is given, who testified that the serious injury done by these creatures
rendered it quite impossible for tenants to pay their rents. The counsel
for the defendants urged in favour of his clients the many benefits which
they conferred upon the community, and especially upon the agricultural
class by destroying noxious insects and larvæ and by stirring up and
enriching the soil, and concluded by expressing the hope that, if they
should be sentenced to depart, some other suitable place of abode might be
assigned to them. He demanded, furthermore, that they should be provided
with a safe conduct securing them against harm or annoyance from dog, cat
or other foe. The judge recognized the reasonableness of the latter
request, in its application to the weaker and more defenceless of the
culprits, and mitigated the sentence of perpetual banishment by ordering
that “a free safe-conduct and an additional respite of fourteen days be
granted to all those which are with young and to such as are yet in their
infancy; but on the expiration of this reprieve each and every must be
gone, irrespective of age or previous condition of pregnancy.” (Vide
Appendix C.)
An old Swiss chronicler named Schilling gives a full account of the
prosecution and anathematization of a species of vermin called inger,
which seems to have been a coleopterous insect of the genus Brychus and
very destructive to the crops. The case occurred in 1478 and the trial was
conducted before the Bishop of Lausanne by the authority and under the
jurisdiction of Berne. The first document recorded is a long and earnest
declaration and admonition delivered from the pulpit by a Bernese
parish-priest, Bernhard Schmid, who begins by stating that his “dearly
beloved” are doubtless aware of the serious injury done by the inger and
of the suffering which they have caused. The Leutpriester, as he is
termed, gives a brief history of the matter and of the measures taken to
procure relief. The mayor and common council of Berne were besought in
their wisdom to devise some means of staying the plague, and after much
earnest deliberation they held counsel with the Bishop of Lausanne, who
“with fatherly feeling took to heart so great affliction and harm” and by
an episcopal mandate enjoined the inger from committing further
depredations. After exhorting the people to entreat God by “a common
prayer from house to house” to remove the scourge, he proceeds to warn and
threaten the vermin in the following manner: “Thou irrational and
imperfect creature, the inger, called imperfect because there was none of
thy species in Noah’s ark at the time of the great bane and ruin of the
deluge, thou art now come in numerous bands and hast done immense damage
in the ground and above the ground to the perceptible diminution of food
for men and animals; and to the end that such things may cease, my
gracious Lord and Bishop of Lausanne has commanded me in his name to
admonish you to withdraw and to abstain; therefore by his command and in
his name and also by virtue of the high and holy trinity and through the
merits of the Redeemer of mankind, our Saviour Jesus Christ, and in virtue
of and obedience to the Holy Church, I do command and admonish you, each
and all, to depart within the next six days from all places where you have
secretly or openly done or might still do damage, also to depart from all
fields, meadows, gardens, pastures, trees, herbs, and spots, where things
nutritious to men and to beasts spring up and grow, and to betake
yourselves to the spots and places, where you and your bands shall not be
able to do any harm secretly or openly to the fruits and aliments
nourishing to men and beasts. In case, however, you do not heed this
admonition or obey this command, and think you have some reason for not
complying with them, I admonish, notify and summon you in virtue of and
obedience to the Holy Church to appear on the sixth day after this
execution at precisely one o’clock after midday at Wifflisburg, there to
justify yourselves or to answer for your conduct through your advocate
before His Grace the Bishop of Lausanne or his vicar and deputy. Thereupon
my Lord of Lausanne or his deputy will proceed against you according to
the rules of justice with curses and other exorcisms, as is proper in such
cases in accordance with legal form and established practice.” The priest
then exhorts his “dear children” devoutly to beg and to pray on their
knees with Paternosters and Ave Marias to the praise and honour of the
high and holy trinity, and to invoke and crave the divine mercy and help
in order that the inger may be driven away. (Vide Appendix D.)
There is no further record of proceedings at this time, and it is highly
probable that the detection of some technical error rendered it necessary
to postpone the case, since this pettifogger’s trick was almost always
resorted to and proved generally successful in procuring an adjournment.
At any rate either this or a precisely similar trial occurred in the
following year. Early in May 1479, the mayor and common council of Berne
sent copies of the monitorium and citation issued by the Bishop of
Lausanne to their representative for distribution among the priests of the
afflicted parishes, in order that it might be promulgated from their
respective pulpits and thus brought to the knowledge of the delinquents.
About a week later, on May 15, the same authorities sent also a letter to
the Bishop of Lausanne asking for new instructions in the matter, as they
were not certain how they should proceed, urging that immediate steps
should be taken, as the further delay would be “utterly intolerable.” This
impatience would seem to imply that the anathema had been hanging fire for
some time and that the prosecution was identical with that of the
preceding year.
The appointed term having elapsed and the inger still persisting in their
obduracy, the mayor and common council of Berne issued the following
document conferring plenipotentiary power of attorney on Thüring Fricker
to prosecute the case: “We, the mayor, council and commune of the city of
Berne, to all those of the bishopric of Lausanne, who see, read, or hear
this letter. We make known that after mature deliberation we have
appointed, chosen and deputed and by virtue of the present letter do
appoint, choose and depute the excellent Thüring Fricker, doctor of the
liberal arts and of laws, our now chancellor, to be our legal delegate and
agent and that of our commune, as well as of all the lands and places of
the bishopric of Lausanne, which are directly or indirectly subject and
appurtenant to us and of which a complete list is herein contained. And
indeed he has assumed this general and special attorneyship, whereof the
one shall not be prejudicial to the other, in the case which we have
undertaken and prosecute and have determined to prosecute before the court
of the right reverend in Christ Benedict de Montferrand, Bishop of
Lausanne, Count and our most worthy Superior, against the noxious host of
the inger (brucorum), which creeping secretly in the earth devastate the
fields, meadows and all kinds of grain, whereby with grievous wrong they
do detriment to the ever-living God, to whom the tithes belong, and to
men, who are nourished therewith and owe obedience to him. In this cause
he shall act in our stead, and in the name of all of us collectively and
severally shall plead, demur, reply, prove by witnesses, hear judgment or
judgments, appoint other defenders and in general and specially do each
and every thing which the importance of the cause may demand and which we
ourselves in case of our presence would be able to do. We solemnly promise
in good faith that all and the whole of what may be transacted, performed,
provided, pledged, and ordained in this cause by our aforesaid attorney or
by the proxy appointed by him shall be firmly and gratefully observed by
us, with the express renunciation of each and every thing that might
either by right or actually, in any wise, either wholly or partially
impair, weaken or assail our ordainment, conclusion and determination,
also over against any reservation of right, which permits a general
renunciation, even if no special reservation has preceded, with the
exclusion of every fraud and every deceit. In corroboration and
confirmation of the aforesaid we ratify this letter with the warranty of
our seal. Given on the twenty-second of May 1479.”
The trial began a couple of days later and was conducted with less “of the
law’s delay” than usual, inasmuch as it ended on the twenty-ninth day of
the same month. The defender of the insects was a certain Jean Perrodet of
Freiburg, who according to all accounts was a very inefficient advocate
and does not appear to have contested the case with the ability and energy
which the interests of his clients required. The sentence of the court
with the appended anathema of the bishop was as follows: “Ye accursed
uncleanness of the inger, which shall not be called animals nor mentioned
as such, ye have been heretofore by virtue of the appeal and admonition of
our Lord of Lausanne enjoined to withdraw from all fields, grounds and
estates of the bishopric of Lausanne, or within the next six days to
appear at Lausanne, through your proctor, to set forth and to hear the
cause of your procedure, and to act with just judgment either for or
against you, pursuant to the said citation. Thereupon our gracious Lords
of Berne solicited by their mandate such a day in court at Lausanne, and
there before the tribunal renewed their plaint in their name and in that
of all the provinces of the said bishopric, and your reply thereto through
your proctor has been fully heard, and the legal terms have been justly
observed by both parties, and a lawful decision pronounced word for word
in this wise:
“We, Benedict of Montferrand, Bishop of Lausanne, etc., having heard the
entreaty of the high and mighty lords of Berne against the inger and the
ineffectual and rejectable answer of the latter, and having thereupon
fortified ourselves with the Holy Cross, and having before our eyes the
fear of God, from whom alone all just judgments proceed, and being advised
in this cause by a council of men learned in the law, do therefore
acknowledge and avow in this our writing that the appeal against the
detestable vermin and inger, which are harmful to herbs, vines, meadows,
grain and other fruits, is valid, and that they be exorcised in the person
of Jean Perrodet, their defender. In conformity therewith we charge and
burden them with our curse, and command them to be obedient and
anathematize them in the name of the Father, the Son and the Holy Ghost,
that they turn away from all fields, grounds, enclosures, seeds, fruits
and produce, and depart. By virtue of the same sentence I declare and
affirm that you are banned and exorcised, and through the power of
Almighty God shall be called accursed and shall daily decrease
whithersoever you may go, to the end that of you nothing shall remain save
for the use and profit of man. Adiungendo aliquid in devotionem populi.”
The phrase das si beswärt werden in die person Johannis Perrodeti irs
beschirmers does not imply that the vermin or the devils, of which they
were supposed to be incarnations, were to be conjured into him, but refer
to him merely as their proctor and legal representative. The results of
the prosecution, which had been awaited with intense and anxious interest
by the people, were received with great joy, and the Bernese government
ordered a full report of the proceedings to be made. The ecclesiastical
anathema, however, proved to be brutum fulmen; nothing more came of it,
says Schilling, “owing to our sins.” Another chronicler adds that God
permitted the inger to remain as a plague and a punishment until the
people repented of their wickedness and gave evidence of their love and
gratitude to Him, namely, by giving to the Church tithes of what the
insects had not destroyed.
The Swiss priest in his malediction declares that the inger were not in
Noah’s ark and even denies that they are animals properly speaking,
stigmatizing them as living corruption, products of spontaneous generation
perhaps, or more probably creations of the devil. This position was
assumed in order to escape the gross impropriety and glaring incongruity
of having the Church of God curse the creatures which God had made and
pronounced very good, and afterwards took pains to preserve from
destruction by the deluge. This difficulty, always a serious one, was, as
we have seen, one of the chief points urged by the counsel for the defence
in favour of his clients.
Malleolus gives the following formula for banning serpents and expelling
them from human habitations, inculcating incidentally the iniquity of
perjury and judicial injustice: “By virtue of this ban and conjuration I
command you to depart from this house and cause it to be as hateful and
intolerable to you, as the man, who knowingly bears false witness or
pronounces an unjust sentence, is to God.” Sometimes the exorcism was in
the form of a prayer, as, for example, in that used for the purgation and
disinfection of springs and water-courses: “O Lord Jesus, thou who didst
bless the river Jordan and wast baptized in it and hast purified and
cleansed it to the end that it might be a healing element for the
redemption from sin, bless, sanctify and purify this water, so that there
may be left in it nothing noxious, nothing pestiferous or contagious,
nothing pernicious, but that everything in it may be pure and immaculate,
in order that we may use whatever is created in it for our welfare and to
thy glory, through our Lord Jesus Christ. Amen.”
In a Latin protocol of legal proceedings in Crollolanza’s Storia del
Contado di Chiavenna it is recorded that on June 26, 1659, Capt. J. B.
Pestalozzi came, in behalf of the communes of Chiavenna, Mese, Gordona,
Prada and Samolico, before the commissioner Hartmann Planta and brought
complaint against certain caterpillars on account of the devastations
committed by them, demanding that these hurtful creatures should be
summoned by the proper sheriff to appear in court on June 28 at a
specified hour in order to have a curator and defender appointed, who
should answer for them to the plaintiffs. A second document, dated June
28, 1659, and signed by the notary Battista Visconti, certifies that the
said summons had been duly issued and five copies of the same been posted
each on a tree in the five forests in the territory of the aforesaid five
communes. A third document of the same date required the advocate of the
accused, Cesare de Peverello, to appear before the court on the following
Tuesday, July 1, in behalf of his recusant clients, who were charged with
trespassing upon the fields, gardens and orchards and doing great damage
therein, instead of remaining in their habitat, the forest. The
prosecutors required that they should seek their food in wild and wooded
places and cease from ravaging cultivated grounds. A fourth document
contains an account of the trial; the pleadings of the respective parties,
so far as they are preserved, do not differ essentially from those already
quoted. In the fifth and final document the court recognizes the right of
the caterpillars to life, liberty, and the pursuit of happiness, provided
the exercise of this right “does not destroy or impair the happiness of
man, to whom all lower animals are subject.” Accordingly a definite place
of abode is to be assigned to them and various places are proposed. The
protocol is incomplete, so that we are left in ignorance of the ultimate
decision. The whole is written in execrable Latin quite worthy of the
subject.
More than half-a-century later the Franciscan friars of the cloister of
St. Anthony in the province of Piedade no Maranhão, Brazil, were greatly
annoyed by termites, which devoured their food, destroyed their furniture,
and even threatened to undermine the walls of the monastery. Application
was made to the bishop for an act of interdiction and excommunication, and
the accused were summoned to appear before an ecclesiastical tribunal to
give account of their conduct. The lawyer appointed to defend them urged
the usual plea about their being God’s creatures and therefore entitled to
sustenance, and made a good point in the form of an argumentum ad
monachum by praising the industry of his clients, the white ants, and
declaring them to be in this respect far superior to their prosecutors,
the Gray Friars. He also maintained that the termites were not guilty of
criminal aggression, but were justified in appropriating the fruits of the
fields by the right derived from priority of possession, inasmuch as they
had occupied the land long before the monks came and encroached upon their
domain. The trial lasted for some time and called forth remarkable
displays of legal learning and forensic eloquence, with numerous citations
of sacred and profane authorities on both sides, and ended in a
compromise, by the terms of which the plaintiffs were obliged to provide a
suitable reservation for the defendants, who were commanded to go thither
and to remain henceforth within the prescribed limits. In the chronicles
of the cloister it is recorded, under date of Jan. 1713, that no sooner
was the order of the prelatic judge promulgated by being read officially
before the hills of the termites than they all came out and marched in
columns to the place assigned. The monkish annalist regards this prompt
obedience as conclusive proof that the Almighty endorsed the decision of
the court. [Cited by Emile Angel on the authority of Manoel Bernardes’
Nova Floresta, ou Sylva de varios apophthegmas e ditos sentencios
espirituaes e moraes, etc. Vol. V., Lisboá, 1747.]
About the middle of the sixteenth century the inhabitants of several
villages in Aargau were greatly annoyed by swarms of gadflies and
petitioned the Bishop of Constance for relief. In the episcopal rescript,
written and signed by the vidame Georg Winterstetter, the people are
enjoined to abstain from dancing on Sundays and feast days, from all forms
of libidinousness, gambling with cards or dice and other frivolities.
These injunctions are followed by prayer and the usual formulas of
conjuration and exorcism. The original document was written in Latin and
preserved in the archives of Baden in Switzerland, but is now lost. In
1566 the Landamman of Unterwalden, Johannes Wirz, took a German
translation of it home with him to be used in case of need against the
“vergifteten Würmer,” and deposited it in the archives of Obwalden, where
it still remains. It was published in 1898 by Dr. Merz.
In Protestant communities, the priest as exorcist has been superseded, to
a considerable extent, by the professional conjurer, who in some portions
of Europe is still employed to save crops from devouring insects and
similar plagues. A curious instance of this kind is recorded in Görres’
Historisch-Politische Blätter for 1845 (Heft VII. p. 516). A Protestant
gentleman in Westphalia, whose garden was devastated by worms, after
having tried divers vermicidal remedies in vain, resolved to have recourse
to a conjurer. The wizard came and walked about among the vegetables,
touching them with a wand and muttering enchantments. Some workmen, who
were repairing the roof of a stable near by, made fun of this hocus-pocus
and began to throw bits of lime at the conjurer. He requested them to
desist, and finally said: “If you don’t leave me in peace, I shall send
all the worms up on the roof.” This threat only excited the hilarity of
the scoffers, who continued to ridicule and disturb him in his
incantations. Thereupon he went to the nearest hedge, cut a number of
twigs, each about a finger in length, and placed them against the wall of
the stable. Soon the vermin began to abandon the plants and, crawling in
countless numbers over the twigs and up the wall, took complete possession
of the roof. In less than an hour the men were obliged to stop working and
stood in the court below covered with confusion and cabbage-worms.
The writer, who relates this strange incident, fully believes that it
actually occurred, and ascribes it to “the force of human faith and the
magnetic power of a firm will over nature.” This, too, is the theory held
by Paracelsus, who maintained that the effectiveness of a curse lay in the
energy of the will, by which the wish, so to speak, concretes into a deed,
just as anger directs the arm and actualizes itself in a blow. By “fervent
desire” merely, without any physical effort or aggressive act, he deemed
it possible to wound a man’s body or to pierce it through as with a sword.
He also held that brutes are more easily exorcised or accursed than men,
“for the spirit of man resists more than that of the brute.” Similar
notions were entertained nearly a century later by Jacob Boehme, who
defines magic as “doing in the spirit of the will,” an idea which finds
more recent and more scientific expression in Schopenhauer’s doctrine of
“the objectivation of the will.” Indeed, Schopenhauer’s postulate of the
will as the sole energy and actuality in the universe is only the
philosophic statement of an assumption, upon which magicians and
medicine-men, enchanters, exorcists and anathematizers have acted more or
less in all ages. We have a striking illustration of the workings of some
such mysterious, quasi-hyperphysical force in hypnotism, the reality of
which it is no longer possible to deny, however wonderful and
incomprehensible its manifestations may appear.
It is natural that a religion of individual initiative and personal
responsibility, like Protestantism, should put less confidence in theurgic
machinery and formularies of ex-cathedral execration than a religion like
Catholicism, in which man’s spiritual concerns are entrusted to a
hierarchical corporation to be managed according to traditional and
infallible methods. This tendency crops out in a decree published at
Dresden, in 1559, by “Augustus Duke and Elector,” wherein he commends the
“Christian zeal of the worthy and pious parson, Daniel Greysser,” for
having “put under ban the sparrows, on account of their unceasing and
extremely vexatious chatterings and scandalous unchastity during the
sermon, to the hindrance of God’s word and of Christian devotion.” But the
Saxon parson, unlike the Bishop of Trier, did not expect that his ban
would cause the offending birds to avoid the church or to fall dead on
entering it. He relied less on the directly coercive or withering action
of the curse than on the human agencies, which he might thereby set at
work for the accomplishment of his purpose. By his proscription he put the
culprits out of the pale of public sympathy and protection and gave them
over as a prey to the spoiler, who was persuaded that he was doing a pious
work by exterminating them. It was solemnly enjoined upon the hunter and
the fowler to lie in wait for the anathematized sparrows with guns and
with snares (durch mancherlei visirliche und listige Wege); and the
Elector issued his decree in order to enforce this duty on all good
Christians. (See Appendix E.)
A faded and somewhat droll survival of ecclesiastical excommunication and
exorcism is the custom, still prevailing in European countries and some
portions of the United States, of serving a writ of ejectment on rats or
simply sending them a friendly letter of advice in order to induce them to
quit any house, in which their presence is deemed undesirable. Lest the
rats should overlook and thus fail to read the epistle, it is rubbed with
grease, so as to attract their attention, rolled up and thrust into their
holes. Mr. William Wells Newell, in a paper on “Conjuring Rats,” printed
in The Journal of American Folk-Lore (Jan.-March, 1892), gives a
specimen of such a letter, dated, “Maine, Oct. 31, 1888,” and addressed in
business style to “Messrs. Rats and Co.” The writer begins by expressing
his deep interest in the welfare of said rats as well as his fears lest
they should find their winter quarters in No. 1, Seaview Street,
uncomfortable and poorly supplied with suitable food, since it is only a
summer residence and is also about to undergo repairs. He then suggests
that they migrate to No. 6, Incubator Street, where they “can live snug
and happy” in a splendid cellar well stored with vegetables of all kinds
and can pass easily through a shed leading to a barn containing much
grain. He concludes by stating that he will do them no harm if they heed
his advice, otherwise he shall be forced to use “Rough on Rats.” This
threat of resorting to rat poison in case of the refusal to accept his
kind counsel is all that remains of the once formidable anathema of the
Church.
In Scotland, when these domestic rodents became too troublesome, people of
the lower classes are wont to post the following notice on the walls of
their houses:
“Ratton and mouse,
Lea’ the puir woman’s house,
Gang awa’ owre by to ’e mill,
And there ane and a’ ye’ll get your fill.”
In order to make the conjuration effective some particular abode must be
assigned to them; it is not sufficient to bid them begone, but they are to
be told to go to a definite place. The fact that they are usually sent
across a river or brook may indicate a lingering tradition of their
demoniacal character, since, according to a widespread popular
superstition, a water-course is a barrier to hobgoblins and evil spirits:
“A running stream they dare na cross.”
In this case the rats, as imps of Satan, having reached their destination,
would find it impossible to return.
It was in Ireland, the native realm of bulls and like incongruities, that
conjuring or “rhyming” rats seems to have been most common, if we may
judge from the manner in which it is alluded to by the Elizabethan poets.
Thus in As you Like It Rosalind says in reference to Orlando’s verses:
“I was never so be-rhymed since Pythagoras’ time, that I was an Irish rat,
which I can hardly remember.” Randolph declares:
“My poets
Shall with a satire, steep’d in gall and vinegar,
Rhime ’em to death, as they do rats in Ireland.”
Ben Jonson is still more specific:
“Rhime ’em to death, as they do Irish rats,
In drumming tunes.”
From this reference to the mode of conjuring it appears that the repeating
of the rhymes was accompanied with the beating of a drum, as is still the
usage in France. From the very earliest times a peculiar magical potency
has been ascribed to words woven into rhythmic form. The fascination which
metrical expression, even as a mere jingle and jargon, still retains for
the youth of the individual was yet far more strongly felt in the youth of
the race. The simple song was intoned as a spell and the rude chant
mumbled as a charm.
In France the conjuration of field-mice bears a more distinctly religious
stamp. On the first Sunday in Lent, the so-called Feast of the Torches
(la Fête des Brandons ou des Bures), the peasants wander in all
directions through the fields and orchards with lighted torches of twisted
straw, uttering the following incantation, which not only threatens to
burn the whiskers of obdurate mice, but also hints at the wine-bibbing
propensities of the curate:
“Sortez, sortez d’ici, mulots!
Ou je vais vous bruler les crocs!
Quittez, quittez ces blés!
Allez, vous trouverez
Dans la cave du curé
Plus à boire qu’à manger.”
The form of imprecation varies in different provinces, but usually
includes some threat of breaking the bones or burning the beards of the
refractory rodents, in case they refuse to quit the close, as in the
following summons:
“Taupes et mulots,
Sors de mon clos,
Ou je te casse les os;
Barbassione! Si tu viens dans non clos,
Je te brûle la barbe jusqu’aux os.”
The utterance of these words is emphasized by loud and discordant noises
of cat-calls, tin horns, and similar instruments of “Callithumpian” music.
Gregory, who was Bishop of Tours in the latter half of the sixth century,
states in his History of the Franks (VIII. 35) that bronze talismans
representing dormice and serpents were used in Paris to protect the city
against the ravages of these creatures; and when the town of Le Mans was
rebuilt after its destruction by fire in 1145, a toad with a gold chain
round its neck, was enclosed in a block of stone as a preservative against
venomous reptiles. (Le Corvasier: Hist, des Évêques du Mans, 1648, p.
441. Cf. Desnoyers: Recherches, etc., p. 7.)
The use of the above-mentioned means of conjuration is unquestionably of
very ancient date. Thus in a treatise on agriculture entitled τὰ γεωπονικά
and consisting of twenty books, written in the tenth century by the
Bithynian Byzantine, Kassianos Bassos, the following prescription is given
for getting rid of field-mice:
“Take a slip of paper and write on it these words: I adjure you, O mice,
who dwell here not to injure me yourselves nor to permit any other mouse
to do so; and I make over to you this field (describing it). But should I
find you staying here after having been warned, with the help of the
mother of the gods I will cut you in seven pieces.” The author quotes this
recipe, in order, as he says, that nothing may remain unrecorded, but
expressly declares that he has no confidence in its efficiency and advises
the husbandman to put his trust in good rat-bane. Bassos derived the
materials for his popular encyclopædia chiefly from the “Geoponics”
composed by Anatolios and Didymos some six centuries earlier, and even
most of his citations of classical writers are taken from the same
sources. That the above-mentioned exorcism is pagan in its origin is
evident from the invocation of the aid of Cybele for the destruction of
disobedient vermin. In a Christian conjuration the Mother of God would
have been substituted for the mother of the gods, whom the Greeks revered
as the personification of all-creating and all-sustaining nature. The
resemblance of this formula, which the Greeks may have borrowed with the
worship of Cybele from the Phrygians, to the Yankee’s letter of advice is
peculiarly interesting.
In the ancient conjuration the harmful or undesirable animals were
commanded to go to a certain locality, set apart for them, and this
injunction was accompanied with dire threats in case of disobedience; the
milder epistolary form of the present day is more advisory and persuasive
and offers them inducements to migrate and to take up their abode
elsewhere. Sometimes this kind counsel is given verbally, as, for example,
in Thuringia, where it is customary to get rid of cabbage-worms by going
into the garden, requesting them to depart, and calling out: “In yonder
village is church-ale (Kirmes)”; thus implying that they will find
better entertainment at this festival. (Witzschel: Sagen, Sitten und
Gebräuche aus Thüringen. Wien, 1878, p. 217.) The willingness of peasant
communities to ward off evil from themselves at the expense of their
neighbours is a survival of the primitive ethics, which recognizes only
the rights of the family or tribe and treats all aliens as foes. It is the
same feeling that causes the inhabitants of the Alps to erect so-called
weather-crosses (Wetterkreuze) for the purpose of averting
thunder-storms and hailstones from themselves by diverting them into an
adjacent valley. This method of protection is based upon the theory that
tempests, hurricanes, and all violent commotions of nature are the work of
demons or witches, who avoid the symbol of Christ’s death and the world’s
redemption and direct their fury elsewhere. A like egotism is expressed in
the inscription on many houses of peasants entreating St. Florian to
preserve their habitation from flames and to set fire to others, as though
the holy man must indulge his incendiary passion by pouring out upon some
human abode the blazing vessel, which he is represented as bearing in his
hand. The inscription is the same as that with which Reynard the Fox
adorned his castle Malepartus, and which might be translated:
“Saint Florian, thou martyr blessed,
Protect this house and burn the rest.”
Not only were insects, reptiles and small mammals, such as rats and mice,
legally prosecuted and formally excommunicated, but judicial penalties,
including capital punishment, were also inflicted upon larger quadrupeds.
In the Report and Researches on this subject, published by
Berriat-Saint-Prix in the Memoirs of the Royal Society of Antiquaries of
France (Paris, 1829, Tome VIII. pp. 403-50), numerous extracts from the
original records of such proceedings are given, and also a list of the
kinds of animals thus tried and condemned, extending from the beginning of
the twelfth to the middle of the eighteenth century, and comprising in all
ninety-three cases. This list has been enlarged by D’Addosio so as to
cover the period from 824 to 1845, and to include one hundred and
forty-four prosecutions resulting in the execution or excommunication of
the accused, but even this record is by no means complete. (Vide
Appendix F for a still fuller list.)
The culprits are a miscellaneous crew, consisting chiefly of caterpillars,
flies, locusts, leeches, snails, slugs, worms, weevils, rats, mice,
moles, turtle-doves, pigs, bulls, cows, cocks, dogs, asses, mules, mares
and goats. Only those cases are reported in which the accused were found
guilty; of these prosecutions, according to the above-mentioned registers,
two belong to the ninth century, one to the eleventh, three to the
twelfth, two to the thirteenth, six to the fourteenth, thirty-four to the
fifteenth, forty-five to the sixteenth, forty-three to the seventeenth,
seven to the eighteenth and one to the nineteenth century. To this list
might be added other cases, such as the prosecution and malediction of
noxious insects at Glurns in the Tyrol in 1519, at Als in Jutland in 1711,
at Bouranton in 1733, at Lyö in Denmark in 1805-6, and at Pozega in
Slavonia in 1866. In the latter case one of the largest of the locusts was
seized and tried and then put to death by being thrown into the water with
anathemas on the whole species. A few years ago swarms of locusts
devastated the region near Kallipolis in Turkey, and a petition was sent
by the Christian population to the monks of Mount Athos begging them to
bear in solemn procession through the fields the girdle of St. Basilius,
in order to expel the insects. This request was granted, and as the
locusts gradually disappeared, because there was little or nothing left
for them to eat, the orthodox of the Greek Church from the bishop to the
humblest laymen firmly believed or at least maintained that a miracle had
been wrought. Pious Mohammedans exorcise and ostracize locusts and other
harmful insects by reading the Koran aloud in the ravaged fields, as was
recently done at Denislue in Asia Minor with satisfactory results. Also as
late as 1864 at Pleternica in Slavonia, a pig was tried and executed for
having maliciously bitten off the ears of a female infant aged one year.
The flesh of the condemned animal was cut in pieces and thrown to the
dogs, and the head of the family, in which the pig lived, as is the custom
of pigs among the peasants of that country, was put under bonds to provide
a dowry for the mutilated child, so that the loss of her ears might not
prove to be an insuperable obstacle to her marriage. (Amira, p. 578.) It
would be incorrect to infer from the tables just referred to that no
judicial punishment of animals occurred in the tenth century or that the
fifteenth, sixteenth, and seventeenth centuries were peculiarly addicted
to such practices. It is well known that during some of the darkest
periods of the Middle Ages and even in later times the registers of the
courts were very imperfectly kept, and in many instances the archives have
been entirely destroyed. It is highly probable, therefore, that the cases
of capital prosecution and conviction of animals, which have been
collected and printed by Berriat-Saint-Prix and others, however thorough
their investigations may have been, constitute only a very small
percentage of those which actually took place.
Beasts were often condemned to be burned alive; and strangely enough, it
was in the latter half of the seventeenth century, an age of comparative
enlightenment, that this cruel penalty seems to have been most frequently
inflicted. Occasionally a merciful judge adhered to the letter of the law
and curbed its barbarous spirit by sentencing the culprit to be slightly
singed and then to be strangled before being committed to the flames.
Sometimes brutes were doomed to be buried alive. Thus we have the receipt
of “Phélippart, sergeant of high justice of the city of Amiens,” for the
sum of sixteen soldi, in payment for services rendered in March 1463, in
“having buried in the earth two pigs, which had torn and eaten with their
teeth a little child in the faubourg of Amiens, who for this cause passed
from life to death (étoit allé de vie a trépas).” In 1557, on the 6th of
December, a pig in the Commune of Saint-Quentin was condemned to be
“buried all alive” (enfoui tout vif), “for having devoured a little
child in l’hostel de la Couronne.” Again, a century earlier, in 1456, two
pigs were subjected to this punishment, “on the vigil of the Holy Virgin,”
at Oppenheim on the Rhine, for having killed a child. More than three
centuries later the same means were employed for curing murrain, which in
the summer of 1796 had broken out at Beutelsbach in Würtemberg and carried
off many head of cattle. By the advice of a French veterinary doctor, who
was quartered there with the army of General Moreau, the town bull was
buried alive at the crossroads in the presence of several hundred persons.
We are not informed whether this sacrifice proved to be a sufficiently
“powerful medicine” to stay the epizoötic plague; the noteworthy fact is
that the superstitious rite was prescribed and performed, not by an Indian
magician or an African sorcerer, but by an official of the French
republic.
Animals are said to have been even put to the rack in order to extort
confession. It is not to be supposed that, in such cases, the judge had
the slightest expectation that any confession would be made; he wished
merely to observe all forms prescribed by the law, and to set in motion
the whole machinery of justice before pronouncing judgment. The statement
of a French writer, Arthur Mangin (L’Homme et la Bête. Paris, 1872, p.
344), that “the cries which they uttered under torture were received as
confessions of guilt,” is absurd. No such notion was ever entertained by
their tormentor. “The question,” which under the circumstances would seem
to be only a wanton and superfluous act of cruelty, was nevertheless an
important element in determining the final decision, since the sentence of
death could be commuted into banishment, whipping, incarceration or some
milder form of punishment, provided the criminal had not confessed his
guilt under torture. The use of the rack might be, therefore, a merciful
means of escaping the gallows. Appeals were sometimes made to higher
tribunals and the judgments of the lower courts annulled or modified. In
one instance a sow and a she-ass were condemned to be hanged; on appeal,
and after a new trial, they were sentenced to be simply knocked on the
head. Occasionally an appeal led to the acquittal of the accused.
In 1266, at Fontenay-aux-Roses, near Paris, a pig convicted of having
eaten a child was publicly burned by order of the monks of Sainte
Geneviève. In 1386, the tribunal of Falaise sentenced a sow to be mangled
and maimed in the head and forelegs, and then to be hanged, for having
torn the face and arms of a child and thus caused its death. Here we have
a strict application of the lex talionis, the primitive retributive
principle of taking an eye for an eye and a tooth for a tooth. As if to
make the travesty of justice complete, the sow was dressed in man’s
clothes and executed on the public square near the city-hall at an expense
to the state of ten sous and ten deniers, besides a pair of gloves to the
hangman. The executioner was provided with new gloves in order that he
might come from the discharge of his duty, metaphorically at least, with
clean hands, thus indicating that, as a minister of justice, he incurred
no guilt in shedding blood. He was no common pig-killer, but a public
functionary, a “master of high works” (maître des hautes œuvres), as
he was officially styled. (Vide Appendix G.)
We may add that the west wall of the south branch of the transept in the
Church of the Holy Trinity (Sainte-Trinité) at Falaise in Normandy was
formerly adorned with a fresco-painting of this execution, which is
mentioned in Statistique de Falaise (1827, t. I. 83), and more fully
described by l’Abbé Pierre-Gilles Langevin, in his Recherches Historiques
sur Falaise (1814, p. 146). In a Supplement (p. 12) to this work,
published several years later, the Abbé states that, about the year 1820,
the entire church, including the fresco, was whitewashed, so that the
picture has since then been invisible, and, so far as can be ascertained,
no engraving or other copy of it has ever been made. Unfortunately, too,
as the same writer informs us, la châsse de la bannière (banner-holder)
was fastened to the wall of the church on this very spot, thus covering
and permanently destroying at least a portion of the painting.
In 1394, a pig was found guilty of “having killed and murdered a child in
the parish of Roumaygne, in the county of Mortaing, for which deed the
said pig was condemned to be haled and hanged by Jehan Petit, lieutenant
of the bailiff.” The work was really done by the hangman (pendart),
Jehan Micton, who received for his services the sum of “fifty souls
tournois.” (Vide Appendix H.) In another case the deputy bailiff of
Mantes and Meullant presented a bill, dated March 15, 1403, which
contained the following items of expense incurred for the incarceration
and execution of an infanticide sow:
“Cost of keeping her in jail, six sols parisis.
“Item, to the master of high works, who came from Paris to Meullant to
perform the said execution by comand and authority of the said
bailiff, our master, and of the procurator of the king, fifty-four
sols parisis.
“Item, for a carriage to take her to justice, six sols parisis.
“Item, for cords to bind and hale her, two sols eight deniers parisis.
“Item, for gloves, two deniers parisis.”
This account, which amounted in all to sixty-nine sols eight deniers
parisis, was examined and approved by the auditor of the court, De
Baudemont, who affixed to it his own seal with signature and paraph and
“in further confirmation and approbation thereof caused it to be sealed
with the seal of the Chatellany of Meullant, on the 15th day of March in
the year 1403.” (See Appendix I.) In the following year a pig was executed
at Rouvres for the same offence.
Brutes and human criminals were confined in the same prison and subjected
to the same treatment. Thus “Toustain Pincheon, keeper of the prisons of
our lord the king in the town of Pont de Larche,” acknowledges the
receipt, “through the hand of the honourable and wise man, Jehan Monnet,
sheriff (vicomte) of the said town, of nineteen sous six deniers
tournois for having found the king’s bread for the prisoners detained, by
reason of crime, in the said prison.” The jailer gives the names of the
persons in custody, and concludes the list with “Item, one pig, conducted
into the said prison and kept there from the 24th of June, 1408,
inclusive, till the 17th of the following July,” when it was hanged “for
the crime of having murdered and killed a little child” (pource que
icellui porc avoit muldry et tue ung pettit enfant). For the pig’s board
the jailer charged two deniers tournois a day, the same as for boarding a
man, thus placing the porker, even in respect to its maintenance, on a
footing of perfect equality with the human prisoners. He also puts into
the account “ten deniers tournois for a rope, found and furnished for the
purpose of tying the said pig that it might not escape.” The correctness
of the charges is certified to by “Jean Gaulvant, sworn tabellion of our
lord the king in the viscounty of Pont de Larche.” (Vide Appendix J.)
Again in 1474, the official of the Bishop of Lausanne sentenced a pig to
be hanged “until death ensueth,” for having devoured an infant in its
cradle in the vicinity of Oron, and to remain suspended from the gallows
for a certain length of time as a warning to wrong-doers. It is also
expressly stated that, in 1585, the body of a pig, which had been executed
for the murder of a child at Saint-Omer, at the hostelry of Mortier d’Or,
was left hanging “for a long space” on a gibbet in a field near the
highway. (Derheims: Histoire de Saint-Omer, p. 327.) A little later a
similar spectacle met the eyes of Guy Pape, as he was going to
Châlons-sur-Marne in Champagne, to pay homage to King Henry IV. In his own
words: dum ibam ad civitatem Cathalani in Campania ad Regem tunc ibi
existentem, vidi quemdam porcum, in furcis suspensum, qui dicebatur
occidisse quemdam puerum. (Quaestio CCXXXVIII: De poena bruti
delinquentis. Lugduni, MDCX.)
On the 5th of September, 1379, as two herds of swine, one belonging to the
commune and the other to the priory of Saint-Marcel-le-Jeussey, were
feeding together near that town, three sows of the communal herd, excited
and enraged by the squealing of one of the porklings, rushed upon Perrinot
Muet, the son of the swinekeeper, and before his father could come to his
rescue, threw him to the ground and so severely injured him that he died
soon afterwards. The three sows, after due process of law, were condemned
to death; and as both the herds had hastened to the scene of the murder
and by their cries and aggressive actions showed that they approved of the
assault, and were ready and even eager to become participes criminis,
they were arrested as accomplices and sentenced by the court to suffer the
same penalty. But the prior, Friar Humbert de Poutiers, not willing to
endure the loss of his swine, sent an humble petition to Philip the Bold,
then Duke of Burgundy, praying that both the herds, with the exception of
the three sows actually guilty of the murder, might receive a full and
free pardon. The duke lent a gracious ear to this supplication and ordered
that the punishment should be remitted and the swine released. (Vide
Appendix K.)
A peculiar custom is referred to in the procès verbal of the prosecution
of a porker for infanticide, dated May 20, 1572. The murder was committed
within the jurisdiction of the monastery of Moyen-Montier, where the case
was tried and the accused sentenced to be “hanged and strangled on a
gibbet.” The prisoner was then bound with a cord and conducted to a cross
near the cemetery, where it was formally given over to an executioner from
Nancy. “From time immemorial,” we are told, “the justiciary of the Lord
Abbot of Moyen-Montier has been accustomed to consign to the provost of
Saint-Diez, near this cross, condemned criminals, wholly naked, that they
may be executed; but inasmuch as this pig is a brute beast, he has
delivered the same bound with a cord, without prejudicing or in any wise
impairing the right of the Lord Abbot to deliver condemned criminals
wholly naked.” The pig must not wear a rope unless the right to do without
it be expressly reserved, lest some human culprit, under similar
circumstances, should claim to be entitled to raiment.
“’Twill be recorded for a precedent;
And many an error, by the same example
Will rush into the state: it cannot be.”
In the case of a mule condemned to be burned alive together with a man
guilty of buggery, at Montpellier, in 1565, as the quadruped was vicious
and inclined to kick (vitiosus et calcitrosus), the executioner cut off
its feet before consigning it to the flames. This mutilation was an
arbitrary and extra-judicial act, dictated solely by considerations of
personal convenience. Hangmen often indulged in capricious and
supererogatory cruelty in the exercise of their patibulary functions, and
mediæval as well as later writers on criminal jurisprudence repeatedly
complain of this evil and call for reform. Thus Damhouder, in his Rerum
Criminalium Praxis (cap. de carnifice, p. 234), urges magistrates to be
more careful in selecting persons for this important office, and not to
choose evil-doers, “assiduous gamblers, public whoremongers, malicious
back-biters, impious blasphemers, assassins, thieves, murderers, robbers,
and other violators of the law as vindicators of justice.” Indeed, these
hardened wretches sometimes took the law into their own hands. For
example, on the 9th of June, 1576, at Schweinfurt in Franconia, a sow,
which had bitten off the ear and torn the hand of a carpenter’s child,
was given into custody, whereupon the hangman, without legal authority,
took it to the gallows-green (Schindrasen) and there “hanged it publicly
to the disgrace and detriment of the city.” For this impudent usurpation
of judiciary powers Jack Ketch was forced to flee and never dared return.
Hence arose the proverbial phrase Schweinfurter Sauhenker (Schweinfurt
sow-hangman), used to characterize a low and lawless ruffian and vile
fellow of the baser sort. It was not the mere killing of the sow, but the
execution without a judicial decision, the insult and contempt of the
magistracy and the judicatory by arrogating their functions, that excited
the public wrath and official indignation.
Buggery (offensa cujus nominatio crimen est, as it is euphemistically
designated in legal documents) was uniformly punished by putting to death
both parties implicated, and usually by burning them alive. The beast,
too, is punished and both are burned (punitur etiam pecus et ambo
comburuntur), says Guillielmus Benedictinus, a writer on law, who lived
about the end of the fourteenth century. Thus, in 1546, a man and a cow
were hanged and then burned by order of the parliament of Paris, the
supreme court of France. In 1466, the same tribunal condemned a man and a
sow to be burned at Corbeil. Occasionally interment was substituted for
incremation. Thus in 1609, at Niederrad, a man and a mare were executed
and their bodies buried in the same carrion-pit. On the 12th of September,
1606, the mayor of Loens de Chartres, on complaint of the dean, canons,
and chapter of the cathedral of Chartres, condemned a man named Guillaume
Guyart to be “hanged and strangled on a gibbet in reparation and
punishment of sodomy, whereof the said Guyart is declared accused,
attainted and convicted.” A bitch, his accomplice, was sentenced to be
knocked on the head (assommée) by the executioner of high justice and
“the dead bodies of both to be burned and reduced to ashes.” It is
furthermore added that if the said Guyart, who seems to have
contumaciously given leg-bail, cannot be seized and apprehended in person,
the sentence shall, in his case, be executed in effigy by attaching his
likeness in painting to the gibbet. It was also decreed that all the
property of the absconder should be confiscated and the sum of one hundred
and fifty livres be adjudged to the plaintiffs, out of which the costs of
the trial were to be defrayed. (Vide Appendix L.) This disgusting crime
appears to have been very common; at least Ayrault in his Ordre
Judiciaire, published in 1606, states that he has many times
(multoties) seen brute beasts put to death for this cause. In his
Magnalia Christi Americana (Book VI, (III), London, 1702) Cotton Mather
records that “on June 6, 1662, at New Haven, there was a most
unparalleled wretch, one Potter by name, about sixty years of age,
executed for damnable Bestialities.” He had been a member of the Church
for twenty years and was noted for his piety, “devout in worship, gifted
in prayer, forward in edifying discourse among the religious, and zealous
in reforming the sins of other people.” Yet this monster, who is described
as possessed by an unclean devil, “lived in most infandous Buggeries for
no less than fifty years together, and now at the gallows there were
killed before his eyes a cow, two heifers, three sheep and two sows, with
all of which he had committed his brutalities. His wife had seen him
confounding himself with a bitch ten years before; and he then excused
himself as well as he could, but conjured her to keep it secret.” He
afterwards hanged the bitch, probably as a sort of vicarious atonement.
According to this account he must have begun to practice sodomy when he
was ten years of age, a vicious precocity which the author would doubtless
explain on the theory of diabolical possession. In 1681, a habitual
sodomite, who had been wont to defile himself with greyhounds, cows,
swine, sheep and all manner of beasts, was brought to trial together with
a mare, at Wünschelburg in Silesia, where both were burned alive. In 1684,
on the 3rd of May, a bugger was beheaded at Ottendorf, and the mare, his
partner in crime, knocked on the head; it was expressly enjoined that in
burning the bodies the man’s should lie underneath that of the beast. In
the following year, fourteen days before Christmas, a journeyman tailor,
“who had committed the unnatural deed of carnal lewdness with a mare,” was
burned at Striga together with the mare.
For the same offence Benjamin Deschauffour was condemned, May 25, 1726, to
be tied to a stake and there burned alive “together with the minutes of
the trial;” his ashes were strewed to the wind and his estates seized and,
after the deduction of a fine of three thousand livres, confiscated to the
benefit of his Majesty. In the case of Jacques Ferron, who was taken in
the act of coition with a she-ass at Vanvres in 1750, and after due
process of law, sentenced to death, the animal was acquitted on the ground
that she was the victim of violence and had not participated in her
master’s crime of her own free-will. The prior of the convent, who also
performed the duties of parish priest, and the principal inhabitants of
the commune of Vanvres signed a certificate stating that they had known
the said she-ass for four years, and that she had always shown herself to
be virtuous and well-behaved both at home and abroad and had never given
occasion of scandal to any one, and that therefore “they were willing to
bear witness that she is in word and deed and in all her habits of life a
most honest creature.” This document, given at Vanvres on Sept. 19, 1750,
and signed by “Pintuel Prieur Curé” and the other attestors, was produced
during the trial and exerted a decisive influence upon the judgment of the
court. As a piece of exculpatory evidence it may be regarded as unique in
the annals of criminal prosecutions.
The Carolina or criminal code of the emperor Charles V., promulgated at
the diet of Ratisbon in 1532, ordained that sodomy in all its forms and
degrees should be punished with death by fire “according to common custom”
(“so ein Mensch mit einem Viehe, Mann mit Mann, Weib mit Weib,
Unkeuschheit treibet, die haben auch das Leben verwircket, und man soll
sie der gemeinen Gewohnheit nach mit dem Feuer vom Leben zum Tode
richten.” Art. 116.), but stipulated that, if for any reason the
punishment of the sodomite should be mitigated, the same measure of mercy
should be shown to the beast. This principle is reaffirmed by Benedict
Carpzov in his Pratica Nova Rerum Criminalium (Wittenberg, 1635), in
which he states that “if for any cause the sodomite shall be punished only
with the sword, then the beast participant of his crime shall not be
burned, but shall be struck dead and buried by the knacker or field-master
(Caviller oder Feldmeister).” The bugger was also bound to compensate
the owner for the loss of the animal, or, if he left no property, the
value must be paid out of the public treasury. “If the criminal act was
not fully consummated, then the human offender was publicly scourged and
banished, and the animal, instead of being killed, was put away out of
sight in order that no one might be scandalized thereby” [Jacobi Döpleri,
Theatrum Poenarum Suppliciorum et Executionum Criminalium, oder
Schau-Platz derer Leibes- und Lebens-Straffen, etc. Sondershausen, 1693,
II. p. 151.]
All Christian legislation on this subject is simply an application and
amplification of the Mosaic law as recorded in Exodus xxii. 19 and
Leviticus xx. 13-16, just as the cruel persecutions and prosecutions for
witchcraft in mediæval and modern times derive their authority and
justification from the succinct and peremptory command: “Thou shalt not
suffer a witch to live.” In the older criminal codes two kinds or degrees
of sodomy are mentioned, gravius and gravissimum; the former being
condemned in the thirteenth verse and the latter in the fifteenth and
sixteenth verses of Leviticus. Döpler tells some strange stories of the
results of the peccatum gravissimum; and the fact that a sober writer on
jurisprudence could believe and seriously narrate such absurdities,
furnishes a curious contribution to the history of human credulity.
It is rather odd that Christian law-givers should have adopted a Jewish
code against sexual intercourse with beasts and then enlarged it so as to
include the Jews themselves. The question was gravely discussed by
jurists, whether cohabitation of a Christian with a Jewess or vice versa
constitutes sodomy. Damhouder (Prax. Rer. Crim. c., 96, n. 48) is of the
opinion that it does, and Nicolaus Boër (Decis., 136, n. 5) cites the case
of a certain Johannes Alardus or Jean Alard, who kept a Jewess in his
house in Paris and had several children by her; he was convicted of sodomy
on account of this relation and burned, together with his paramour, “since
coition with a Jewess is precisely the same as if a man should copulate
with a dog” (Döpl., Theat., II. p. 157). Damhouder, in the work just
cited, includes Turks and Saracens in the same category, “inasmuch as such
persons in the eye of the law and our holy faith differ in no wise from
beasts.”
But to resume the subject of the perpetration of felonious homicide by
animals, on the 10th of January, 1457, a sow was convicted of “murder
flagrantly committed on the person of Jehan Martin, aged five years, the
son of Jehan Martin of Savigny,” and sentenced to be “hanged by the hind
feet to a gallows-tree (a ung arbre esproné).” Her six sucklings, being
found stained with blood, were included in the indictment as accomplices;
but “in lack of any positive proof that they had assisted in mangling the
deceased, they were restored to their owner, on condition that he should
give bail for their appearance, should further evidence be forthcoming to
prove their complicity in their mother’s crime.” Above three weeks later,
on the 2nd of February, to wit “on the Friday after the feast of Our Lady
the Virgin,” the sucklings were again brought before the court; and, as
their owner, Jehan Bailly, openly repudiated them and refused to be
answerable in any wise for their future good conduct, they were declared,
as vacant property, forfeited to the noble damsel Katherine de Barnault,
Lady of Savigny. This case is particularly interesting on account of the
completeness with which the procès verbal has been preserved. (See
Appendix M.)
Sometimes a fine was imposed upon the owner of the offending animal, as
was the case with Jehan Delalande and his wife, who were condemned, on the
18th of April, 1499, by the bailiff of the Abbey of Josaphat near
Chartres, to pay a fine of eighteen francs and to be confined in prison
until this sum should be paid, “on account of the murder of a child named
Gilon, aged five and a half years or thereabouts, perpetrated by a porker,
aged three months or thereabouts.” The pig was condemned to be “hanged and
executed by justice.” The owners were punished because they were supposed
to have been culpably negligent of the child, who had been confided to
their care and keeping, and not because they had, in the eye of the law,
any proprietary responsibility for the infanticidal animal. The mulct
implied remissness on their part as guardians or foster-parents of the
infant. In general, as we have seen, the owner of the blood-guilty beast
was considered wholly blameless and sometimes even remunerated for his
loss. (Vide Appendix N.)
According to the laws of the Bogos, a pastoral and nominally Christian
tribe of Northern Abyssinia, a bull, cow or any other animal which kills a
man is put to death; the owner of the homicidal beast is not held in any
wise responsible for its crime, nevertheless he practically incurs a
somewhat heavy penalty by not receiving any compensation for the loss of
his property. This exercise of justice is quite common among the tribes of
Central Africa. In Montenegro, horses, oxen and pigs have been recently
tried for homicide and put to death, unless the owner redeemed them by
paying a ransom.
On the 14th of June, 1494, a young pig was arrested for having “strangled
and defaced a young child in its cradle, the son of Jehan Lenfant, a
cowherd on the fee-farm of Clermont, and of Gillon his wife,” and
proceeded against “as justice and reason would desire and require.”
Several witnesses were examined, who testified “on their oath and
conscience” that “on the morning of Easter Day, as the father was guarding
cattle and his wife Gillon was absent in the village of Dizy, the infant
being left alone in its cradle, the said pig entered during the said time
the said house and disfigured and ate the face and neck of the said
child, which, in consequence of the bites and defacements inflicted by the
said pig, departed this life (de ce siècle trépassa).” The sentence
pronounced by the judge was as follows, “We, in detestation and horror of
the said crime, and to the end that an example may be made and justice
maintained, have said, judged, sentenced, pronounced and appointed, that
the said porker, now detained as a prisoner and confined in the said
abbey, shall be by the master of high works hanged and strangled on a
gibbet of wood near and adjoinant to the gallows and high place of
execution belonging to the said monks, being contiguous to their fee-farm
of Avin.” The crime was committed “on the fee-farm of
Clermont-lez-Montcornet, appertaining in all matters of high, mean and
base justice to the monks of the order of Premonstrants,” and the
prosecution was conducted by “Jehan Levoisier, licenciate in law, the
grand mayor of the church and monastery of St. Martin de Laon of the order
of Premonstrants and the aldermen of the same place.” The plaintiffs were
the friars, who preferred charges against the pig and procured the
evidence necessary to its conviction. (Vide Appendix O.)
In 1394, a pig was hanged at Mortaign for having sacrilegiously eaten a
consecrated wafer; and in a case of infanticide, it is expressly stated in
the plaintiff’s declaration that the pig killed the child and ate of its
flesh, “although it was Friday,” and this violation of the jejunium
sextae, prescribed by the Church, was urged by the prosecuting attorney
and accepted by the court as a serious aggravation of the porker’s
offence.
Nothing would be easier than to multiply examples of this kind.
Infanticidal swine were hanged in 1419 at Labergement-le-Duc, in 1420 at
Brochon, in 1435 at Trochères, and in 1490 at Abbeville; the
last-mentioned execution took place “under the auspices of the aldermanity
and with the tolling of the bells.” It was evidently regarded as a very
solemn affair. The records of mediæval courts, the chronicles of mediæval
cloisters, and the archives of mediæval cities, especially such as were
under episcopal sovereignty and governed by ecclesiastical law, are full
of such cases. The capital punishment of a dumb animal for its crimes
seems to us so irrational and absurd, that we can hardly believe that sane
and sober men were ever guilty of such folly; yet the idea was quite
familiar to our ancestors even in Shakespeare’s day, in the brilliant
Elizabethan age of English literature, as is evident from a passage in
Gratiano’s invective against Shylock:
“thy currish spirit
Govern’d a wolf, who, hang’d for human slaughter,
Even from the gallows did his fell soul fleet,
And, whilst thou lay’st in thy unhallow’d dam,
Infus’d itself in thee; for thy desires
Are wolfish, bloody, starv’d, and ravenous.”
That such cases usually came under the jurisdiction of monasteries and
so-called spiritualities and were tried by their peculiarly organized
tribunals, will not seem strange, when we remember that these religious
establishments were great landed proprietors and at one time owned nearly
one-third of all real estate in France. The frequency with which pigs were
brought to trial and adjudged to death, was owing, in a great measure, to
the freedom with which they were permitted to run about the streets and to
their immense number. The fact that they were under the special protection
of St. Anthony of Padua conferred upon them a certain immunity, so that
they became a serious nuisance, not only endangering the lives of
children, but also generating and disseminating diseases. It is recorded
that in 1131, as the Crown Prince Philippe, son of Louis the Gross, was
riding through one of the principal streets of Paris, a boar, belonging to
an abbot, ran violently between the legs of his horse, so that the prince
fell to the ground and was killed. In some cities, like Grenoble in the
sixteenth century, the authorities treated them very much as we do mad
dogs, empowering the carnifex to seize and slay them whenever found at
large. On Nov. 20, 1664, the municipality of Naples passed an ordinance
that the pigs, which frequented the streets and piazzas to the detriment
and danger of the inhabitants, should be removed from the city to a wood
or other uninhabited place or be slaughtered within twelve days on pain
of the penalties already prescribed and threatened, probably in the order
issued on Nov. 3, of the same year. It would seem, however, that these
ordinances did not produce the desired effect, or soon fell into abeyance,
since another was promulgated four years later, on Nov. 29, 1668,
expelling the pigs from the city and calling attention to the fact that
they corrupted the atmosphere and thus imperiled the public health.
Sanitary considerations and salutary measures of this kind were by no
means common in the Middle Ages, but were a gradual outgrowth of the
spirit of the Renaissance. It was with the revival of letters that men
began to love cleanliness and to appreciate its hygienic value as well as
its æsthetic beauty. Little heed was paid to such things in the “good old
times” of earlier date, when the test of holiness was the number of years
a person went unwashed, and the growth of the soul in sanctity was
estimated by the thickness of the layers of filth on the body, as the age
of the earth is determined by the strata which compose its crust.
The freedom of the city almost universally enjoyed by mediæval swine is
still maintained by their descendants in many towns of Southern Italy and
Sicily, where they ramble at will through the streets or assemble in
council before the palace of the prefect (cf. D’Addosio, Bestie
Delinquenti, pp. 23-5).
In the latter half of the sixteenth century the tribunals began to take
preventive measures against the public nuisance by holding the inhabitants
responsible for the injuries done to individuals by swine running at large
and by threatening with corporal as well as pecuniary punishment all
persons who left “such beasts without a good and sure guard.” Thus it is
recorded that on the 27th of March, 1567, “a sow with a black snout,” “for
the cruelty and ferocity” shown in murdering a little child four months
old, having “eaten and devoured the head, the left hand and the part above
the right breast of the said infant,” was condemned to be “exterminated to
death, and to this end to be hanged by the executioner of high justice on
a tree within the metes and bounds of the said judicature on the highway
from Saint-Firmin to Senlis.” The court of the judicatory of Senlis, which
pronounced this sentence on complaint of the procurator of the seigniory
of Saint-Nicolas, also forbade all the inhabitants and subjects of the
said seignioralty to permit the like beasts to go unguarded on pain of an
arbitrary fine and of corporal chastisement in default of payment. (Vide
Appendix P.)
But although pigs appear to have been the principal culprits, especially
as regard infanticide, other quadrupeds were frequently called to answer
for similar crimes. Thus, in 1314, a bull belonging to a farmer in the
village of Moisy, escaped into the highway, where it attacked a man and
injured him so severely that he died a few hours afterwards. The ferocious
animal was seized and imprisoned by the officers of Charles, Count of
Valois, and after being tried and convicted was sentenced to be hanged.
This judgment of the court was confirmed by the Parliament of Paris and
the execution took place at Moisy-le-Temple on the common gallows. An
appeal based upon the incompetency of the court was then made by the
Procurator of the Order of the Hospital of the Ville de Moisy to the
Parliament of La Chandeleur, which decided that the bull had met with its
deserts and been justly put to death, but that the Count of Valois had no
jurisdiction on the territory of Moisy, and his officials no power to
institute proceedings in this case. The sentence was right in equity, but
judicially and technically wrong, and could not therefore serve as a
precedent.
There is also extant an order issued by the magistracy of Gisors in 1405,
commanding payment to be made to the carpenter who had erected the
scaffold on which an ox had been executed “for its demerits.” Again on the
16th of May, 1499, the judicial authorities of the Cistercian Abbey of
Beaupré near Beauvais condemned a red bull to be “executed until death
inclusively,” for having “killed with furiosity a lad of fourteen or
fifteen years of age, named Lucas Dupont,” who was employed in tending the
horned cattle of the farmer Jean Boullet. (Vide Appendix Q.) In 1389,
the Carthusians of Dijon caused a horse to be condemned to death for
homicide; and as late as 1697 a mare was burned by the decision and decree
of the Parliament of Aix, which, it must be remembered, was not a
legislative body, but a supreme court of judicature, thus differing in its
functions from the States General, the only law-making and representative
assembly in France, that may be said to have corresponded in the slightest
degree to the modern conception of a parliament.
In 1474, the magistrates of Bâle sentenced a cock to be burned at the
stake “for the heinous and unnatural crime of laying an egg.” The auto da
fé was held on a height near the city called the Kohlenberg, with as
great solemnity as would have been observed in consigning a heretic to the
flames, and was witnessed by an immense crowd of townsmen and peasants.
The statement made by Gross in his Kurze Basler Chronik, that the
executioner on cutting open the cock found three more eggs in him, is of
course absurd; we have to do in this case not with a freak of nature, but
with the freak of an excited imagination tainted with superstition. Other
instances of this kind have been recorded, one in the Swiss Prättigau as
late as 1730, although in many cases the execution of the gallinaceous
malefactor was more summary and less ceremonious than at Bâle.
The oeuf coquatri was supposed to be the product of a very old cock and
to furnish the most active ingredient of witch ointment. When hatched by a
serpent or a toad, or by the heat of the sun it brought forth a cockatrice
or basilisk, which would hide in the roof of the house and with its
baneful breath and “death-darting eye” destroy all the inmates. Many
naturalists believed this fable as late as the eighteenth century, and in
1710 the French savant Lapeyronie deemed this absurd notion worthy of
serious refutation, and read a paper, entitled “Observation sur les petits
oeufs de poule sans jaune, que l’on appelle vulgairement oeufs de Coq,”
before the Academy of Sciences in order to prove that cocks never lay and
that the small and yolkless eggs attributed to them owe their peculiar
shape and condition to a disease of the hen resulting in a hydropic
malformation of the oviduct. A farmer brought him several specimens of
this sort, somewhat larger than a pigeon’s egg, and assured him that they
had been laid by a cock in his own barnyard. On opening one of them, M.
Lapeyronie was surprised to find only a very slight trace of the yolk
resembling “a small serpent coiled.” He now began to suspect that the cock
might be an hermaphrodite, but on killing and dissecting it discovered
nothing in support of this theory, the internal organs being all perfectly
healthy and normal. But although the unfortunate chanticleer had fallen a
victim to the scientific investigation of a popular delusion, the eggs in
question continued to be produced, until the farmer by carefully watching
the fowls detected the hen that laid them. The dissection showed that the
pressure of a bladder of serous fluid against the oviduct had so
contracted it, that the egg in passing had the yolk squeezed out of it,
leaving merely a yellowish discoloration that looked like a worm. Another
peculiarity of this hen was that she crowed like “a hoarse cock” (un coq
enroué), only more violently; a phenomenon also a source of terror to the
superstitious, but ascribed by M. Lapeyronie to the same morbid state of
the oviduct and the consequent pain caused by the passage of the egg
(Mémoires de l’Académie de Sciences. Paris, 1710, pp. 553-60.)
A Greek physiologus of the twelfth century, written in verse, calls the
animal hatched from the egg of an old cock επτεινάρια, a name which would
imply some sort of winged creature. It was “sighted like the basilisk,”
and endowed also in other respects with the same fatal qualities.
In the case of a valuable animal, such as an ox or a horse, the severity
of retaliatory justice was often tempered by economical considerations and
the culprit confiscated, but not capitally punished. Thus as early as the
twelfth century it is expressly stated that “it is the law and custom in
Burgundy that if an ox or a horse commit one or several homicides, it
shall not be condemned to death, but shall be taken by the Seignior
within whose jurisdiction the deed was perpetrated or by his servitors and
be confiscated to him and shall be sold and appropriated to the profit of
the said Seignior; but if other beasts or Jews do it, they shall be hanged
by the hind feet” (Coustumes et Stilles de Bourgoigne, § 197 in Giraud:
Essai sur l’Histoire du Droit Francais, II. p. 302; quoted by Amira). It
was a cruel irony of the law that conferred upon pigs and Jews a perfect
equality of rights by sending them both to the scaffold.
Animals were put on a par with old crones in bearing their full share of
persecution during the witchcraft delusion. Pigs suffered most in this
respect, since they were assumed to be peculiarly attractive to devils,
and therefore particularly liable to diabolical possession, as is evident
from the legion that went out of the lunatic and were permitted, at their
own request, to enter into the Gadarene herd of swine. But Beelzebub did
not disdain to become incarnate in all sorts of creatures, such as cats,
dogs of high and low degree, wolves, night-birds and indeed in any beast,
especially if it chanced to be black. Goats, it is well known, were not a
too stinking habitation for him, and even to dwell in skunks he did not
despise. The perpetual smell of burning sulphur in his subterranean abode
may render him proof against any less suffocating form of stench. The
Bible represents Satan as going about as a roaring lion; and according to
the highest ecclesiastical authorities he has appeared visibly as a raven,
a porcupine, a toad and a gnat. Indeed, there is hardly a living creature
in which he has not deigned to disport himself from a blue-bottle to a
bishop, to say nothing of his “appearing invisibly at times” (aliquando
invisibiliter apparens), if we may believe what the learned polyhistor
Tritheim tells of his apparitions. As all animals were considered
embodiments of devils, it was perfectly logical and consistent that the
Prince of Darkness should reveal himself to mortal ken as a mongrel
epitome of many beasts—snake, cat, dog, pig, ape, buck and horse each
contributing some characteristic part to his incarnation.
It was during the latter half of the seventeenth century, when, as we have
seen, criminal prosecutions of animals were still quite frequent and the
penalties inflicted extremely cruel, that Racine caricatured them in Les
Plaideurs, where a dog is tried for stealing and eating a capon. Dandin
solemnly takes his seat as judge, and declares his determination to “close
his eyes to bribes and his ears to brigue.” Petit Jean prosecutes and
L’Intime appears for the defence. Both address the court in florid and
high-flown rhetoric and display rare erudition in quoting Aristotle,
Pausanias and other ancient as well as modern authorities. The accused is
condemned to the galleys. Thereupon the counsel for the defendant brings
in a litter of puppies, pauvres enfants qu’on veut rendre orphelins, and
appeals to the compassion and implores the clemency of the judge. Dandin’s
feelings are touched, for he, too, is a father; as a public officer, also,
he is moved by the economical consideration of the expense to the state of
keeping the offspring of the culprit in a foundling hospital, in case they
should be deprived of paternal support. To the contemporaries of Racine
the representation of a scene like this had a significance, which we fail
to appreciate. It strikes us as simply farcical and not very funny; to
them it was a mirror reflecting a characteristic feature of the time and
ridiculing a grave judicial abuse, as Cervantes, a century earlier,
burlesqued the institution of chivalry in the adventures of Don Quixote.
(See Appendix R.)
Lex talionis is the oldest kind of law and the most deeply rooted in
human nature. To the primitive man and the savage, tit for tat is an
ethical axiom, which it would be thought immoral as well as cowardly not
to put into practice. No principle is held more firmly or acted upon more
universally than that of literal and exact retributions in man’s dealings
with his fellows—the iron rule of doing unto others the wrongs which
others have done unto you. Hebrew legislation demanded “life for life, eye
for eye, tooth for tooth, hand for hand, foot for foot, burning for
burning, wound for wound, stripe for stripe.” An old Anglo-Saxon law made
this retaliatory principle of membrum pro membro the penalty of all
crimes of personal violence, including rape; even a lascivious eye was to
be plucked out, in accordance with the doctrine that “whosoever looketh on
a woman to lust after her hath committed adultery with her already in his
heart.” [“Corruptor puniatur in eo in quo deliquat: oculos igitur amittat,
propter aspectum decoris, quo virginem concupivit; amittat et testiculos,
qui calorem stupri induxerunt.” Cf. Bracton, 147b; 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.
