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diff --git a/old/43286-8.txt b/old/43286-8.txt deleted file mode 100644 index 8164506..0000000 --- a/old/43286-8.txt +++ /dev/null @@ -1,10215 +0,0 @@ -The Project Gutenberg EBook of The Criminal Prosecution and Capital -Punishment of Animals, by Edmund P. Evans - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: The Criminal Prosecution and Capital Punishment of Animals - -Author: Edmund P. Evans - -Release Date: July 23, 2013 [EBook #43286] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK CAPITAL PUNISHMENT OF ANIMALS *** - - - - -Produced by Chris Curnow and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive.) - - - - - - - - - -THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS - - - - -_BY THE SAME AUTHOR_ - -ANIMAL SYMBOLISM IN ECCLESIASTICAL ARCHITECTURE. Fully illustrated. In one -Vol. Crown 8vo. Price 9_s._ - -EVOLUTIONAL ETHICS AND ANIMAL PSYCHOLOGY. In one Vol. Crown 8vo. Price -9_s._ - -LONDON: WILLIAM HEINEMANN - - - - -[Illustration: Execution of a Sow.] - - - - - THE CRIMINAL PROSECUTION AND - CAPITAL PUNISHMENT OF ANIMALS - - - BY E. P. EVANS - AUTHOR OF - "ANIMAL SYMBOLISM IN ECCLESIASTICAL ARCHITECTURE," - "EVOLUTIONAL ETHICS AND ANIMAL PSYCHOLOGY," ETC., ETC. - - - [Illustration] - - - LONDON - WILLIAM HEINEMANN - MCMVI - - - - -_Copyright 1906 by William Heinemann_ - - - - -CONTENTS - - - INTRODUCTION - - Sources--Amira's distinction between retributive and - preventive processes--Addosio's incorrect designation of - the latter as civil suits--Inconsistent attitude of the - Church in excommunicating animals--Causal relation of crime - to demoniacal possession--Squatter sovereignty of devils-- - _Aura corrumpens_--Diabolical infestation and lack of - ventilation--"Bewitched kine"--Greek furies and Christian - demons--Homicidal bees, laying cocks and crowing hens-- - Theory of the personification of animals--Beasts in - Frankish, Welsh, and old German laws--Animal prosecutions - and witchcraft--The Mosaic code in Christian courts--Pagan - deities as demons--Born malefactors among beasts--The - theory of punishment in modern criminology _p._ 1 - - - CHAPTER I - - BUGS AND BEASTS BEFORE THE LAW - - Criminal prosecution of rats--Chassenée appointed to defend - them--Report of the trial--Chassenée employed as counsel in - other cases of this kind--His dissertation on the subject-- - Nature of his argument--Authorities and precedents--The - withering of the fig-tree at Bethany justified and - explained by Dr. Trench--Eels and blood-suckers in Lake - Leman cursed by the Bishop of Lausanne with the approval of - Heidelberg theologians--White bread turned black, and - swallows, fish, and flies destroyed by anathema--St. - Pirminius expels reptiles--Vermifugal efficacy of St. - Magnus' crosier--Papal execratories--Animals regarded by - the law as lay persons, and not entitled to benefit of - clergy--Methods of procedure--Jurisdiction of the courts-- - Records of judicial proceedings against insects--Important - trial of weevils at St. Jean-de-Maurienne extending over - more than eight months--Untenableness of Ménebréa's - theory--Summary of the pleadings--Futile attempts at - compromise--Final decision doubtful--St. Eldrad and the - snakes--Views of Thomas Aquinas--Distinction between - excommunication and anathema--"Sweet beasts and stenchy - beasts"--Animals as incarnations of devils--Their - diabolical character assumed in papal formula for blessing - water to kill vermin--Amusing treatise by Père Bougeant on - this subject--All animals animated by devils, and all - pagans and unbaptized persons possessed with them--Demons - the real causes of diseases--Father Lohbauer's prescription - in such cases--Formula of exorcism issued by Leo XIII.-- - Recent instances of demoniacal possession--Hoppe's - psychological explanation of them--Charcot on faith-cures-- - Why not the duty of the Catholic Church to inculcate - kindness to animals--Zoölatry a form of demonolatry--Gnats - especially dangerous devils--Bodelschwingh's discovery of - the _bacillus infernalis_--Gaspard Bailly's disquisition - with specimens of plaints, pleas, etc.--Ayrault protests - against such proceedings--Hemmerlein's treatise on - exorcisms--Criminal prosecution of field-mice--Vermin - excommunicated by the Bishop of Lausanne--Protocol of - judicial proceedings against caterpillars--Conjurers of - cabbage-worms--Swallows proscribed by a Protestant - parson--Custom of writing letters of advice to rats--Writs - of ejectment served on them--Rhyming rats in Ireland-- - Ancient usage mentioned by Kassianos Bassos--Capital - punishment of larger quadrupeds--Berriat-Saint-Prix's - Reports and Researches--List of culprits--Beasts burned and - buried alive and put to the rack--Swine executed for - infanticide--Bailly's bill of expenses--An ox decapitated - for its demerits--Punishment of buggery--Cohabitation of a - Christian with a Jewess declared to be sodomy--Trial of a - sow and six sucklings for murder--Bull sent to the gallows - for killing a lad--A horse condemned to death for - homicide--A cock burned at the stake for the unnatural - crime of laying an egg--Lapeyronie's investigation of the - subject--Racine's satire on such prosecutions in _Les - Plaideurs_; _Lex talionis_--Tit for tat the law of the - primitive man and the savage--The application of this iron - rule in Hebrew legislation--Flesh of a culprit pig not to - be eaten--Athenian laws for punishing inanimate objects-- - Recent execution of idols in China--Russian bell sentenced - to perpetual exile in Siberia for abetting insurrection-- - Pillory for dogs in Vienna--Treatment prescribed for mad - dogs in the Avesta--Cruelty of laws, of talion and decrees - of corruption of blood--Examples in ancient and modern - legislation--Cicero approves of such penalties for - political offences--Survival of this conception of justice - in theology--Constitutio Criminalis Carolina--Lombroso - opposed to trial by jury as a relic of barbarism-- - Corruption of Swiss cantonal courts--Deodand in English - law--Applications of it in Maryland and in Scotland-- - Blackstone's theory of it untenable--Penalties inflicted - for suicide--Ancient legislation on this subject-- - Legalization of suicide--Abolition of deodands in England _p._ 18 - - - CHAPTER II - - MEDIÆVAL AND MODERN PENOLOGY - - Recent change in the spirit of criminal jurisprudence-- - Mediæval tribunals cut with the executioner's sword the - intricate knots which the modern criminalist essays to - untie--Phlebotomy a panacea in medicine and law--Restless - ghosts of criminals who died unpunished--Execution of - vampires and were-wolves--Case of a were-wolf who devoured - little children "even on Friday"--Pope Stephen VI. brings - the corpse of his predecessor to trial--Mediæval and modern - conceptions of culpability--Problems of psycho-pathological - jurisprudence--Degrees of mental vitiation--Italians - pioneers in the scientific study of criminality--Effects of - these speculations upon legislation--Barbarity of mediæval - penal justice--Gradual abolition of judicial torture--Cruel - sentence pronounced by Carlo Borromeo--"Blue Laws" a great - advance on contemporary English penal codes--Moral and - penal responsibility--Atavism and criminality--Physical - abnormities--Capacity and symmetry of the skull-- - Circumvolutions of the brain--Tattooing not a peculiarity - of criminals, but simply an indication of low æsthetic - sense--Theories of the origin and nature of crime-- - Intelligence not always to be measured by the size of the - encephalon--Remarkable exceptions in Gambetta, Bichat, - Bischoff and Ugo Foscolo--Advanced criminalists justly - dissatisfied with the penal codes of to-day--Measures - proposed by Lombroso and his school--Their conclusions not - sustained by facts--Crime through hypnotic suggestion-- - Difficulty of defining insanity--Coleridge's definition too - inclusive--Predestination and evolution--Criminality among - the lower animals--Punishment preventive or retributive-- - Schopenhauer's doctrine of responsibility for character-- - Remarkable trial of a Swiss toxicomaniac, Marie Jeanneret-- - "Method in Madness" not uncommon--Social safety the supreme - law--Application of this principle to "Cranks"--Spirit of - imitation peculiarly strong in such classes--Contagiousness - of crime--Criminology now in a period of transition _p._ 193 - - - APPENDIX - - A. De Actis Scindicorum Communitatis Sancti Julliani - agentium contra Animalia Bruta ad formam muscarum volantia - coloris viridis communi voce appellata Verpillions seu - Amblevins _p._ 259 - - B. Traite des Monitoires avec un Plaidoyer contre les - Insectes par Spectable Gaspard Bailly _p._ 287 - - C. Allegation, Replication, and Judgment in the process - against field-mice at Stelvio in 1519 _p._ 307 - - D. Admonition, Denunciation, and Citation of the Inger by - the Priest Bernhard Schmid in the name and by the authority - of the Bishop of Lausanne in 1478 _p._ 309 - - E. Decree of Augustus, Duke of Saxony and Elector, - commending the action of Parson Greysser in putting the - sparrows under ban, issued at Dresden in 1559 _p._ 311 - - F. Chronological List of Excommunications and Prosecutions - of Animals from the ninth to the nineteenth century _p._ 313 - - G. Receipt, dated January 9, 1386, in which the hangman of - Falaise acknowledges to have been paid by the Viscount of - Falaise ten sous and ten deniers tournois for the execution - of an infanticidal sow, and also ten sous tournois for a - new glove _p._ 335 - - H. Receipt, dated September 24, 1394, in which Jehan Micton - acknowledges that he received the sum of fifty sous - tournois from Thomas de Juvigney, Viscount of Mortaing, for - having hanged a pig, which had killed and murdered a child - in the parish of Roumaygne _p._ 336 - - I. Attestation of Symon de Baudemont, Lieutenant of the - Bailiff of Nantes and Meullant, made by order of the said - bailiff and the king's proctor, on March 15, 1403, and - certifying to the expenses incurred in executing a sow that - had devoured a small child _p._ 338 - - J. Receipt, dated October 16, 1408, and signed by Toustain - Pincheon, jailer of the royal prisons in the town of Pont - de Larche, acknowledging the payment of nineteen sous and - six deniers tournois for food furnished to sundry men and - to one pig kept in the said prisons on charge of crime _p._ 340 - - K. Letters Patent, by which Philip the Bold, Duke of - Burgundy, on September 12, 1379, granted the petition of - the Friar Humbert de Poutiers, Prior of the town of - Saint-Marcel-lez-Jussey, and pardoned two herds of swine, - which had been condemned to suffer the extreme penalty of - the law as accomplices in an infanticide committed by three - sows _p._ 342 - - L. Sentence pronounced by the Mayor of Loens de Chartres on - the 12th of September, 1606, condemning Guillaume Guyart to - be hanged and burned together with a bitch _p._ 344 - - M. Sentence pronounced by the Judge of Savigny in January, - 1457, condemning to death an infanticidal sow. Also the - sentence of confiscation pronounced nearly a month later on - the six pigs of the said sow for complicity in her crime _p._ 346 - - N. Sentence pronounced, April 18, 1499, in a criminal - prosecution instituted before the Bailiff of the Abbey of - Josaphat, in the Commune of Sèves, near Chartres, against a - pig condemned to be hanged for having killed an infant. In - this case the owners of the pig were fined eighteen francs - for negligence, because the child was their fosterling _p._ 352 - - O. Sentence pronounced, June 14, 1494, by the Grand Mayor - of the church and monastery of St. Martin de Laon, - condemning a pig to be hanged and strangled for infanticide - committed on the fee-farm of Clermont-lez-Montcornet _p._ 354 - - P. Sentence pronounced, March 27, 1567, by the Royal Notary - and Proctor of the Bailiwick and Bench of the Court of - Judicatory of Senlis, condemning a sow with a black snout - to be hanged for her cruelty and ferocity in murdering a - girl of four months, and forbidding the inhabitants of the - said seignioralty to let such beasts run at large on - penalty of an arbitrary fine _p._ 356 - - Q. Sentence of death pronounced upon a bull, May 16, 1499, - by the Bailiff of the Abbey of Beaupré, for furiously - killing Lucas Dupont, a young man of fourteen or fifteen - years of age _p._ 358 - - R. Scene from Racine's comedy _Les Plaideurs_, in which a - dog is tried and condemned to the galleys for stealing a - capon _p._ 360 - - S. Record of the decision of the Law Faculty of the - University of Leipsic condemning a cow to death for having - killed a woman at Machern near Leipsic, July 20, 1621 _p._ 361 - - - BIBLIOGRAPHY _p._ 362 - - INDEX _p._ 373 - - - - -THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS - - - - -INTRODUCTION - - -The present volume is the result of the revision and expansion of two -essays entitled "Bugs and Beasts before the Law," and "Modern and Mediæval -Punishment," which appeared in _The Atlantic Monthly_, in August and -September 1884. Since that date the author has collected a vast amount of -additional material on the subject, which has also been discussed by other -writers in several publications, the most noteworthy of which are -Professor Karl von Amira's _Thierstrafen und Thierprocesse_ (Innsbruck, -1891), Carlo d'Addosio's _Bestie Delinquenti_ (Napoli, 1892), and G. -Tobler's _Thierprocesse in der Schweiz_ (Bern, 1893), but in none of these -works, except the first-mentioned, are there any important statements of -facts or citations of cases in addition to those adduced in the essays -already mentioned, for which the writer was indebted chiefly to the -extensive and exceedingly valuable researches of Berriat-Saint-Prix and M. -L. Ménebréa, and the _Consilium Primum_ of Bartholomew Chassenée, cited in -the appended bibliography. Professor Von Amira is a very distinguished and -remarkably keen-sighted jurisprudent and treats the matter exclusively -from a jurisprudential point of view, his main object being to discover -some general principle on which to explain these strange phenomena, and -thus to assign to them their proper place and true significance in the -historical evolution of the idea of justice and the methods of attaining -it by legal procedure. - -Von Amira draws a sharp line of technical distinction between Thierstrafen -and Thierprocesse; the former were capital punishments inflicted by -secular tribunals upon pigs, cows, horses, and other domestic animals as a -penalty for homicide; the latter were judicial proceedings instituted by -ecclesiastical courts against rats, mice, locusts, weevils, and other -vermin in order to prevent them from devouring the crops, and to expel -them from orchards, vineyards, and cultivated fields by means of exorcism -and excommunication. Animals, which were in the service of man, could be -arrested, tried, convicted and executed, like any other members of his -household; it was, therefore, not necessary to summon them to appear in -court at a specified time to answer for their conduct, and thus make -them, in the strict sense of the term, a party to the prosecution, for -the sheriff had already taken them in charge and consigned them to the -custody of the jailer. Insects and rodents, on the other hand, which were -not subject to human control and could not be seized and imprisoned by the -civil authorities, demanded the intervention of the Church and the -exercise of its supernatural functions for the purpose of compelling them -to desist from their devastations and to retire from all places devoted to -the production of human sustenance. The only feasible method of staying -the ravages of these swarms of noxious creatures was to resort to -"metaphysical aid" and to expel or exterminate them by sacerdotal -conjuring and cursing. The fact that it was customary to catch several -specimens of the culprits and bring them before the seat of justice, and -there solemnly put them to death while the anathema was being pronounced, -proves that this summary manner of dealing would have been applied to the -whole of them, had it been possible to do so. Indeed, the attempt was -sometimes made to get rid of them by setting a price on their heads, as -was the case with the plague of locusts at Rome in 880, when a reward was -offered for their extermination, but all efforts in this direction proving -futile, on account of the rapidity with which they propagated, recourse -was had to exorcisms and be-sprinklings with holy water. - -D'Addosio speaks of the actions brought against domestic animals for -homicide as penal prosecutions, and those instituted against insects and -vermin for injury done to the fruits of the field as civil suits -(_processi civili_); but the latter designation is not correct in any -proper sense of the term, since these actions were not suits to recover -for damages to property, but had solely a preventive or prohibitive -character. The judicial process was preliminary to the utterance of the -malediction and essential to its efficacy. Before fulminating an -excommunication the whole machinery of justice was put in motion in order -to establish the guilt of the accused, who were then warned, admonished, -and threatened, and, in cases of obduracy, smitten with the _anathema -maranatha_ and devoted to utter destruction. As with all bans, charms, -exorcisms, incantations, and other magical hocus-pocus, the omission of -any formality would vitiate the whole procedure, and, by breaking the -spell, deprive the imprecation or interdiction of its occult virtue. -Ecclesiastical thunder would thus be robbed of its fatal bolt and reduced -to mere empty noise, the harmless explosion of a blank cartridge. - -The Church was not wholly consistent in its explanations of these -phenomena. In general the swarms of devouring insects and other noxious -vermin are assumed to have been sent at the instigation of Satan -(_instigante sathana, per maleficium diabolicum_), and are denounced and -deprecated as snares of the devil and his satellites (_diaboli et -ministrorum insidias_); again they are treated as creatures of God and -agents of the Almighty for the punishment of sinful man; from this latter -point of view every effort to exterminate them by natural means would be -regarded as a sort of sacrilege, an impious attempt to war upon the -Supreme Being and to withstand His designs. In either case, whether they -were the emissaries of a wicked demon or of a wrathful Deity, the only -proper and permissible way of relief was through the offices of the -Church, whose bishops and other clergy were empowered to perform the -adjurations and maledictions or to prescribe the penances and -propitiations necessary to produce this result. If the insects were -instruments of the devil, they might be driven into the sea or banished to -some arid region, where they would all miserably perish; if, on the other -hand, they were recognized as the ministers of God, divinely delegated to -scourge mankind for the promotion of piety, it would be suitable, after -they had fulfilled their mission, to cause them to withdraw from the -cultivated fields and to assign them a spot, where they might live in -comfort without injury to the inhabitants. The records contain instances -of both kinds of treatment. - -It was also as a protection against evil spirits that the penalty of death -was inflicted upon domestic animals. A homicidal pig or bull was not -necessarily assumed to be the incarnation of a demon, although it was -maintained by eminent authorities, as we have shown in the present work, -that all beasts and birds, as well as creeping things, were devils in -disguise; but the homicide, if it were permitted to go unpunished, was -supposed to furnish occasion for the intervention of devils, who were -thereby enabled to take possession of both persons and places. This belief -was prevalent in the Middle Ages, and is still taught by the Catholic -Church. In a little volume entitled _Die Verwaltung des Exorcistats nach -Massgabe der römischen Benediktionale_, of which a revised and enlarged -edition was published at Stuttgart in 1893 for the use of priests as a -manual of instruction in performing exorcisms, it is expressly stated by -the reverend author, Dr. Theobald Bischofberger, that a spot, where a -murder or other heinous crime has been committed, if the said crime -remains undetected or unexpiated, is sure to be infested by demons, and -that the inmates of a house or other building erected upon such a site -will be peculiarly liable to diabolical possession, however innocent they -may be personally. Indeed, the more pure and pious they are, the greater -will be the efforts of the demons to enter into and annoy them. Not only -human beings, but also all cattle after their kind, and even the fowls of -the barnyard are subject to infernal vexations of this sort. The -infestation thus produced may continue for centuries, and, although the -property may pass by purchase or inheritance into other hands and be held -successively by any number of rightful owners, the demons remain in -possession unaffected by legal conveyances. If each proprietor imagines he -has an exclusive title to the estate, he reckons without the host of -devils, who exercise there the right of squatter sovereignty and can be -expelled only by sacerdotal authority. Dr. Bischofberger goes so far as to -affirm that it behoves the purchaser of a piece of land to make sure that -it is unencumbered by devils as well as by debts, otherwise he may have to -suffer more from a demoniac lien than from a dead pledge or any other form -of obligation in law. Information concerning the latter can be obtained at -the registry of deeds, but it is far more difficult to ascertain whether -the infernal powers have any claims upon it, since this knowledge can be -derived only inferentially and indirectly from inquiries into the -character of the proprietors for many generations and must always rest -upon presumptive evidence rather than positive proof. Our author does not -hesitate to assert that houses which have been the abodes of pious people -from time immemorial ought to have a higher market value than the -habitations of notoriously wicked families. It is thus shown that -"godliness is profitable" not only "unto all things," but also, as -mediæval writers were wont to say, unto some things besides, which the -apostle Paul in his admonitions to his "son Timothy" never dreamed of. We -are also told that the _aura corrumpens_ resulting from diabolical -infestation imparts to the dwelling a peculiar taint, which it often -retains for a long time after the demons have been cast out, so that -sensitive persons cannot enter such a domicile without getting nervously -excited, slightly dizzy and all in a tremble. The carnal mind, which is at -enmity with all supernatural explanations of natural phenomena, would seek -the source of such sensations in an _aura corrumpens_ arising from the -lack of proper ventilation, and find relief by simply opening the windows -instead of calling in a priest with aspergills, and censers, and -_benedictiones locorum_. - -We have a striking illustration of this truth in the frequent cases of -"bewitched kine." European peasants often confine their cattle in stalls -so small and low that the beasts have not sufficient air to breathe. The -result is that a short time after the stalls are closed for the night the -cattle get excited and begin to fret and fume and stamp, and are found in -the morning weak and exhausted and covered with sweat. The peasant -attributes these phenomena to witchcraft, and calls in an exorcist, who -proceeds to expel the evil spirits. Before performing the ceremony of -conjuration, he opens the doors and windows and the admission of fresh -air makes it quite easy to cast out the demons. A German veterinarian, who -reports several instances of this kind, tried in vain to convince the -peasants that the trouble was due, not to sorcery, but to the absence of -proper sanatory conditions, and finally, in despair of accomplishing his -purpose in any other way, told them that if the windows were left open so -that the witches could go in and out freely, the demons would not enter -into the cattle. This advice was followed and the malign influence ceased. - -The ancient Greeks held that a murder, whether committed by a man, a -beast, or an inanimate object, unless properly expiated, would arouse the -furies and bring pestilence upon the land; the mediæval Church taught the -same doctrine, and only substituted the demons of Christian theology for -the furies of classical mythology. As early as 864, the Council of Worms -decreed that bees, which had caused the death of a human being by stinging -him, should be forthwith suffocated in the hive before they could make any -more honey, otherwise the entire contents of the hive would become -demoniacally tainted and thus rendered unfit for use as food; it was -declared to be unclean, and this declaration of impurity implied a -liability to diabolical possession on the part of those who, like Achan, -"transgressed in the thing accursed." It was the same horror of aiding -and abetting demons and enabling them to extend their power over mankind -that caused a cock, which was suspected of having laid the so-called -"basilisk-egg," or a hen, addicted to the ominous habit of crowing, to be -summarily put to death, since it was only by such expiation that the evil -could be averted. - -A Swiss jurist, Eduard Osenbrüggen (_Studien zur deutschen und -schweizerischen Rechtsgeschichte._ Schaffhausen, 1868, p. 139-149), -endeavours to explain these judicial proceedings on the theory of the -personification of animals. As only a human being can commit crime and -thus render himself liable to punishment, he concludes that it is only by -an act of personification that the brute can be placed in the same -category as man and become subject to the same penalties. In support of -this view he refers to the fact that in ancient and mediæval times -domestic animals were regarded as members of the household and entitled to -the same legal protection as human vassals. In the Frankish capitularies -all beasts of burden or so-called juments were included in the king's ban -and enjoyed the peace guaranteed by royal authority: _Ut jumenta pacem -habent similiter per bannum regis_. The weregild extended to them as it -did to women and serfs under cover of the man as master of the house and -lord of the manor. The beste covert, to use the old legal phraseology, was -thus invested with human rights and inferentially endowed with human -responsibilities. According to old Welsh law atonement was made for -killing a cat or dog belonging to another person by suspending the animal -by the tail so that its nozzle touched the ground, and then pouring wheat -over it until its body was entirely covered. Old Germanic law also -recognized the competency of these animals as witnesses in certain cases, -as, for example, when burglary had been committed by night, in the absence -of human testimony, the householder was permitted to appear before the -court and make complaint, carrying on his arm a dog, cat or cock, and -holding in his hand three straws taken from the roof as symbols of the -house. Symbolism and personification, as applied to animals and inanimate -objects, unquestionably played an important part in primitive legislation, -but this principle does not account for the excommunication and -anathematization of noxious vermin or for the criminal prosecution and -capital punishment of homicidal beasts, nor does it throw the faintest -light upon the origin and purpose of such proceedings. Osenbrüggen's -statement that the cock condemned to be burned at Bâle was personified as -a heretic (Ketzer) and therefore sentenced to the stake, is a far-fetched -and wholly fanciful explanation. As we have already seen, the unfortunate -fowl, suspected of laying an egg in violation of its nature, was feared as -an abnormal, inauspicious, and therefore diabolic creature; the fatal -cockatrice, which was supposed to issue from this egg when hatched, and -the use which might be made of its contents for promoting intercourse with -evil spirits, caused such a cock to be dreaded as a dangerous purveyor to -His Satanic Majesty, but no member of the Kohlenberg Court ever thought of -consigning Chanticleer to the flames as the peer of Wycliffe or of Huss in -heresy. - -The judicial prosecution of animals, resulting in their excommunication by -the Church or their execution by the hangman, had its origin in the common -superstition of the age, which has left such a tragical record of itself -in the incredibly absurd and atrocious annals of witchcraft. The same -ancient code that condemned a homicidal ox to be stoned, declared that a -witch should not be suffered to live, and although the Jewish lawgiver may -have regarded the former enactment chiefly as a police regulation designed -to protect persons against unruly cattle, it was, like the decree of death -against witches, genetically connected with the Hebrew cult and had -therefore an essentially religious character. It was these two paragraphs -of the Mosaic law that Christian tribunals in the Middle Ages were wont to -adduce as their authority for prosecuting and punishing both classes of -delinquents, although in the application of them they were undoubtedly -incited by motives and influenced by fears wholly foreign to the mind of -the Levitical legislator. The extension of Christianity beyond the -boundaries of Judaism and the conversion of Gentile nations led to its -gradual but radical transformation. The propagation of the new and -aggressive faith among the Greeks and Romans, and especially among the -Indo-Germanic tribes of Northern Europe, necessarily deposed, degraded and -demonized the ancestral deities of the proselytes, who were taught -henceforth to abjure the gods of their fathers and to denounce them as -devils. Thus missionary zeal and success, while saving human souls from -endless perdition, served also to enlarge the realm of the Prince of -Darkness and to increase the number of his subjects and satellites. The -new convert saw them with his mind's eye skulking about in obscure places, -haunting forest dells and mountain streams by day, approaching human -habitations by night and waiting for opportunities to lure him back to the -old worship or to take vengeance upon him for his recreancy. Every -untoward event furnished an occasion for their intervention, which could -be averted or repelled only by the benedictions, exorcisms or anathemas of -the Church. The ecclesiastical authorities were therefore directly -interested in encouraging this superstitious belief as one of the chief -sources of their power, and it was for this reason that diabolical -agencies were assumed to be at work in every maleficent force of nature -and to be incarnate in every noxious creature. That this doctrine is -still held and this policy still pursued by the bishops and other clergy -of the Roman Catholic Church, no one familiar with the literature of the -subject can deny. - -Besides the manuals and rituals already cited, consult, for example, _Die -deutschen Bischöfe und der Aberglaube_: Eine Denkschrift von Dr. Fr. -Heinrich Reusch, Professor of Theology in the University of Bonn, who -vigorously protests against the countenance given by the bishops to the -crassest superstitions. For specimens of the literature condemned by the -German professor, but approved by the prelates and the pope, see such -periodicals as _Monat-Rosen zu Ehren der Unbefleckten Gottes-Mutter Maria -and Der Sendbote des göttlichen Herzens Jesu_, published by Jesuits at -Innsbruck in the Tyrol. - -It is a curious fact that the most recent and most radical theories of -juridical punishment, based upon anthropological, sociological and -psychiatrical investigations, would seem to obscure and even to obliterate -the line of distinction between man and beast, so far as their capacity -for committing crime and their moral responsibility for their misdeeds are -concerned. According to Lombroso there are _i delinquenti nati fra gli -animali_, beasts which are born criminals and wilfully and wantonly injure -others of their kind, violating with perversity and premeditation the laws -of the society in which they live. Thus the modern criminologist -recognizes the existence of the kind of malefactor characterized by -Jocodus Damhouder, a Belgian jurist of the sixteenth century, as _bestia -laedens ex interna malitia_; but although he might admit that the beast -perpetrated the deed with malice aforethought and with the clear -consciousness of wrong-doing, he would never think of bringing such a -creature to trial or of applying to it the principle of retributive -justice. This example illustrates the radical change which the theory of -punishment has undergone in recent times and the far-reaching influence -which it is beginning to exert upon penal legislation. In the second part -of the present work the writer calls attention to this important -revolution in the province of criminology, discussing as concisely as -possible its essential features and indicating its general scope and -practical tendencies, so far as they have been determined. It must be -remembered, however, that, although the savage spirit of revenge, that -eagerly demands blood for blood without the slightest consideration of the -anatomical, physiological or psychological conditions upon which the -commission of the specific act depends, has ceased to be the controlling -factor in the enactment and execution of penal codes, the new system of -jurisprudence, based upon more enlightened conceptions of human -responsibility, is still in an inchoate state and very far from having -worked out a satisfactory solution of the intricate problem of the origin -and nature of crime and its proper penalty. - -In 1386, an infanticidal sow was executed in the old Norman city of -Falaise, and the scene was represented in fresco on the west wall of the -Church of the Holy Trinity in that city. This curious painting no longer -exists, and, so far as can be ascertained, has never been engraved. It has -been frequently and quite fully described by different writers, and the -frontispiece of the present volume is not a reproduction of the original -picture, but a reconstruction of it according to these descriptions. It is -taken from Arthur Mangin's _L'Homme et la Bête_ (Paris, 1872), of which -all the illustrations are more or less fancy sketches. A full account of -the trial and execution is given in the present volume. - -The iconographic edition of Jocodus Damhouder's _Praxis Rerum Criminalium_ -(Antverpiæ, 1562) contains at the beginning of each section an engraving -representing the perpetration of the crimes about to be discussed. That at -the head of the chapter entitled "De Damno Pecuario" is a lively picture -of the injuries done by animals and rendering them liable to criminal -process; it is reproduced facing page 161 of the present work. - -The most important documents, from which our knowledge of these judicial -proceedings is derived, are given in the Appendix, together with a -complete list of prosecutions and excommunications during the past ten -centuries, so far as we have been able to discover any record of them. - -The bibliography, although making no claim to be exhaustive, comprises the -principal works on the subject. Articles and essays, which are merely a -rehash of other publications, it has not been deemed necessary to mention. -Such, for example, are "Criminalprocesse gegen Thiere," in _Miscellen aus -der neuesten ausländischen Literatur_ (Jena, 1830, LXV. pp. 152-55), -Jörgensen's _Nogle Frugter af mit Otium_ (Kopenhagen, 1834, pp. 216-23); -Cretella's "Gli Animali sotto Processo," in _Fanfulla della Domenica_ -(Florence, 1891, No. 65), all three based upon the archival researches of -Berriat-Saint-Prix and Ménabréa, and Soldan's "La Personification des -Animaux in Helvetia," in _Monatsschrift der Studentenverbindung Helvetia_ -(VII. pp. 4-17), which is a mere restatement of Osenbrüggen's theory. - -In conclusion the author desires to express his sincere thanks to Dr. -Laubmann, Director of the Munich Hof- und Staatsbibliothek, as well as to -the other custodians of that library, for their uniform kindness and -courtesy in placing at his disposal the printed and manuscript treasures -committed to their keeping. - - - - -CHAPTER I - -BUGS AND BEASTS BEFORE THE LAW - - -It is said that Bartholomew Chassenée,[1] a distinguished French jurist of -the sixteenth century (born at Issy-l'Evêque in 1480), made his reputation -at the bar as counsel for some rats, which had been put on trial before -the ecclesiastical court of Autun on the charge of having feloniously -eaten up and wantonly destroyed the barley-crop of that province. On -complaint formally presented by the magistracy, the official or bishop's -vicar, who exercised jurisdiction in such cases, cited the culprits to -appear on a certain day and appointed Chassenée to defend them. - -In view of the bad repute and notorious guilt of his clients, Chassenée -was forced to employ all sorts of legal shifts and chicane, dilatory pleas -and other technical objections, hoping thereby to find some loophole in -the meshes of the law through which the accused might escape, or at least -to defer and mitigate the sentence of the judge. He urged, in the first -place, that inasmuch as the defendants were dispersed over a large tract -of country and dwelt in numerous villages, a single summons was -insufficient to notify them all; he succeeded, therefore, in obtaining a -second citation, to be published from the pulpits of all the parishes -inhabited by the said rats. At the expiration of the considerable time -which elapsed before this order could be carried into effect and the -proclamation be duly made, he excused the default or non-appearance of his -clients on the ground of the length and difficulty of the journey and the -serious perils which attended it, owing to the unwearied vigilance of -their mortal enemies, the cats, who watched all their movements, and, with -fell intent, lay in wait for them at every corner and passage. On this -point Chassenée addressed the court at some length, in order to show that -if a person be cited to appear at a place, to which he cannot come with -safety, he may exercise the right of appeal and refuse to obey the writ, -even though such appeal be expressly precluded in the summons. The point -was argued as seriously as though it were a question of family feud -between Capulet and Montague in Verona or Colonna and Orsini in Rome. - -At a later period of his life Chassenée was reminded of the legal -principle thus laid down and urged to apply it in favour of clients more -worthy of its protection than a horde of vagrant rodents. In 1540 he was -president of the judicial assembly known as the Parliament of Provence on -a memorable occasion when the iniquitous measure for the extirpation of -heresy by exterminating the Waldenses in the villages of Cabrières and -Merindol was under discussion. One of the members of the tribunal, a -gentleman from Arles, Renaud d'Alleins, ventured to suggest to the -presiding officer that it would be extremely unjust to condemn these -unfortunate heretics without granting them a hearing and permitting an -advocate to speak in their defence, so that they might be surrounded by -all the safeguards of justice, adding that the eminent jurist had formerly -insisted upon this right before the court of Autun and maintained that -even animals should not be adjudged and sentenced without having a proper -person appointed to plead their cause. Chassenée thereupon obtained a -decree from the king commanding that the accused Waldenses should be -heard; but his death, which occurred very soon afterwards, changed the -state of affairs and prevented whatever good effects might have been -produced by this simple act of justice. [Cf. Desnoyers: _Recherches_, etc. -(_vide_ Bibliography), p. 18.] - -In the report of the trial published in the _Thémis Jurisconsulte_ for -1820 (Tome I. pp. 194 sqq.) by Berriat Saint-Prix, on the authority of the -celebrated Jacques Auguste De Thou, President of the Parliament of Paris, -the sentence pronounced by the official is not recorded. But whatever the -judicial decision may have been, the ingenuity and acumen with which -Chassenée conducted the defence, the legal learning which he brought to -bear upon the case, and the eloquence of his plea enlisted the public -interest and established his fame as a criminal lawyer and forensic -orator. - -Chassenée is said to have been employed in several cases of this kind, but -no records of them seem to have been preserved, although it is possible -that they may lie buried in the dusty archives of some obscure provincial -town in France, once the seat of an ecclesiastical tribunal. The whole -subject, however, has been treated by him exhaustively in a book entitled -_Consilium primum, quod tractatus jure dici potest, propter multiplicem et -reconditam doctrinam, ubi luculenter et accurate tractatur quaestio illa: -De excommunicatione animalium insectorum_. This treatise, which is the -first of sixty-nine consilia, embodying opinions on various legal -questions touching the holding and transmission of property, entail, -loans, contracts, dowries, wills, and kindred topics, and which holds a -peculiar place in the history of jurisprudence, was originally published -in 1531, and reprinted in 1581, and again in 1588. The edition referred to -in the present work is the first reprint of 1581, a copy of which is in -the Royal Court and State Library of Munich. - -This curious dissertation originated, as it appears, in an application of -the inhabitants of Beaune to the ecclesiastical tribunal of Autun for a -decree of excommunication against certain noxious insects called huberes -or hurebers, probably a kind of locust or harvest-fly. The request was -granted, and the pernicious creatures were duly accursed. Chassenée now -raises the query whether such a thing may be rightfully and lawfully done -(_sed an recte et de jure fieri possit_), and how it should be effected. -"The principal question," he says, "is whether one can by injunction cause -such insects to withdraw from a place in which they are doing damage, or -to abstain from doing damage there, under penalty of anathema and -perpetual malediction. And although in times past there has never been any -doubt on this point, yet I have thought that the subject should be -thoroughly examined anew, lest I should seem to fall into the vice -censured by Cicero (_De Off._ I. 6), of regarding things which we do not -know as if they were well understood by us, and therefore rashly giving -them our assent." He divides his treatise into five parts, or rather -discusses the subject under five heads: "First, lest I may seem to -discourse to the populace, how are these our animals called in the Latin -language; secondly, whether these our animals can be summoned; thirdly, -whether they can be summoned by procurators, and, if they are cited to -appear personally, whether they can appear by proxy, _i.e._ through -procurators appointed by the judge who summons them; fourthly, what -judge, whether layman or ecclesiastic, is competent to try them, and how -he is to proceed against them and to pass and execute sentence upon them; -fifthly, what constitutes an anathema and how does it differ from an -excommunication." Chassenée's method of investigation is not that of the -philosophic thinker, who marshals facts under general laws and traces them -to rational causes, but combines that of the lawyer, who quotes precedents -and examines witnesses, with that of the theologian, who balances -authorities and serves us with texts instead of arguments. He scrupulously -avoids all psychological speculation or metaphysical reasoning, and simply -aims to show that animals have been tried, convicted, and sentenced by -civil and ecclesiastical courts, and that the competence of these -tribunals has been generally recognized. - -The documentary evidence adduced is drawn from a great variety of sources: -the scriptures of the Old and New Testament, pagan poets and philosophers, -patristic theologians and homilists, mediæval hagiologists, Virgil, Ovid, -Pliny, Cicero, Cato, Aristotle, Seneca, Silius Italicus, Boethius, Gregory -the Great, Pico della Mirandola, the laws of Moses, the prophecies of -Daniel, and the Institutes of Justinian are alike laid under contribution -and quoted as of equal authority. All is fish that comes to his net out -of his erudition, be it salmon or sea-urchin. If twelve witnesses can be -produced in favour of a statement, and only two against it, his reason -bows to the will of the majority, and accepts the proposition as proved. -It must be added, however, to his credit, that he proceeds in this matter -with strict impartiality and perfect rectitude, takes whatever evidence is -at hand, and never tries to pack the witness-box. - -His knowledge of obscure and now utterly forgotten authors, secular and -ecclesiastic, is immense. Like so many scholars of his day he was -prodigiously learned, without being remarkable for clearness or -originality of thought. Indeed, the vastness of his erudition seems rather -to have hampered than helped the vigorous growth of his intellectual -faculties. He often indulges in logical subtilties so shallow in their -speciousness, that they ought not to deceive the veriest smatterer in -dialectics; and the reader is constantly tempted to answer his laboured -argumentations, as Tristram Shandy's Uncle Toby did the lucubrations of -Corporal Trim, by "whistling half-a-dozen bars of Lillibullero." The -examples he adduces afford striking illustrations of the gross credulity -to which the strongly conservative, precedent-mongering mind of the -jurisconsult is apt to fall an easy prey. The habit of seeking knowledge -and guidance exclusively in the records and traditions of the past, in the -so-called "wisdom of ages," renders him peculiarly liable to regard every -act and utterance of antiquity as necessarily wise and authoritative. - -In proof of the power of anathemas, Chassenée refers to the cursing of the -serpent in the Garden of Eden, causing it to go upon its belly for all -time; David's malediction of the mountains of Gilboa, so that they had -neither rain nor dew; God's curse upon the city of Jericho, making its -strong walls fall before the blasts of trumpets; and in the New Testament -the withered fig-tree of Bethany. The words of Jesus, "Every tree that -bringeth not forth good fruit is hewn down and cast into the fire," he -interprets, not merely as the best means of getting rid of a cumberer of -the orchard, but as a condemnation and punishment of the tree for its -delinquencies, and adds: "If, therefore, it is permitted to destroy an -irrational thing, because it does not produce fruit, much more is it -permitted to curse it, since the greater penalty includes the less" (_cum -si liceat quid est plus, debet licere quid est minus_). - -An English professor of divinity, Richard Chevenix Trench, justifies the -withering of the fruitless fig-tree on the same ground or, at least, by a -similar process of reasoning: "It was punished, not for being without -fruit, but for proclaiming by the voice of those leaves that it had such; -not for being barren, but for being false." According to this exegesis, it -was the telling of a wilful lie that "drew on it the curse." The guilty -fig is thus endowed with a moral character and made clearly conscious of -the crime for which it suffered the penalty of death: "Almost as soon as -the word of the Lord was spoken, a shuddering fear may have run through -all the leaves of the tree, which was thus stricken at the heart." As -regards the culpability and punishableness of the object, the modern -divine and the mediæval jurist occupy the same standpoint; only the -latter, with a stricter judicial sense, insists that there shall be no -infliction of punishment until the malefactor has been convicted by due -process of law, and that he shall enjoy all the safeguards which legal -forms and technicalities have thrown around him and under whose covert -even the vilest criminal has the right to take refuge. The Anglican -hermeneutist, on the contrary, would justify the curse and admit the -validity of the anathema, although it was only the angry expression of an -unreasonable impatience disappointed in not finding fruit at the wrong -season, "for the time of figs was not yet." - -A curious and characteristic specimen of the absurd and illogical -inferences, which Chassenée is constantly deducing from his texts, is the -use he makes of the passage in Virgil's first Georgic, in which the poet -remarks that "no religion has forbidden us to draw off water-courses for -irrigating purposes, to enclose crops with fences, or to lay snares for -birds," all these things being essential to successful husbandry. But from -the right to snare birds, our jurisprudent infers the right to -excommunicate them, since "no snares are stronger than the meshes of an -anathema." Far-fetched deductions and wretched twaddle of this sort fill -many pages of the famous lawyer's dissertation. - -Coming down to more recent times, Chassenée mentions several instances of -the effectiveness of anathemas, accepting as convincing testimony the -ecstacies of saints and the extravagant statements of hagiologists without -the slightest expression of doubt as to the truth of these legends. Thus -he relates how a priest anathematized an orchard, because its fruits -tempted the children of his parish and kept them away from mass. The -orchard remained barren until, at the solicitation of the Duchess of -Burgundy, the ban was removed. In like manner the Bishop of Lausanne freed -Lake Leman from eels, which had become so numerous as seriously to -interfere with boating and bathing; on another occasion in the year 1451 -the same ecclesiastic expelled from the waters of this lake an immense -number of enormous blood-suckers, which threatened to destroy all the -large fish and were especially fatal to salmon, the favourite article of -food on fast-days. This method of procedure was both cheap and effective -and, as Felix Malleolus informs us in his _Tractatus de Exorcismis_ (I), -received the approbation of all the learned doctors of the University of -Heidelberg: _omnes studii Heydelbergensis Doctores hujusmodi ritus -videntes et legentes consenserunt_. By the same agency an abbot changed -the sweet white bread of a Count of Toulouse, who abetted and protected -heresy, into black, mouldy bread, so that he, who would fain feed souls -with corrupt spiritual food, was forced to satisfy his bodily hunger with -coarse and unsavoury provender. No sooner was the excommunication removed -than the bread resumed its original purity and colour. Egbert, Bishop of -Trier, anathematized the swallows, which disturbed the devotions of the -faithful by their chirping and chattering, and sacrilegiously defiled his -head and vestments with their droppings, when he was officiating at the -altar. He forbade them to enter the sacred edifice on pain of death; and -it is still a popular superstition at Trier, that if a swallow flies into -the cathedral, it immediately falls to the ground and gives up the ghost. -Another holy man, known as John the Lamb, cursed the fishes, which had -incurred his anger, with results equally fatal to the finny tribe. It is -also related of the honey-tongued St. Bernard, that he excommunicated a -countless swarm of flies, which annoyed the worshippers and officiating -priests in the abbey church of Foigny, and lo, on the morrow they were, -like Sennacherib's host, "all dead corpses." William, Abbot of St. -Theodore in Rheims, who records this miraculous event, states that as soon -as the execration was uttered, the flies fell to the floor in such -quantities that they had to be thrown out with shovels (_palis -ejicientes_). This incident, he adds, was so well known that the cursing -of the flies of Foigny became proverbial and formed the subject of a -parable. [_Vita S. Bernardi_, auctore Wilhelmo abbate S. Thod. Rhem. I. -11.] According to the usual account, the malediction was not so drastic in -its operation and did not cause the flies to disappear until the next day. -The rationalist, whose chill and blighting breath is ever nipping the -tender buds of faith, would doubtless suggest that a sharp and sudden -frost may have added to the force and efficacy of the excommunication. The -saint resorted to this severe and summary measure, says the monkish -chronicler, because the case was urgent and "no other remedy was at hand." -Perhaps this lack of other means of relief may refer to the absence of -"deacons with fly-flaps," who, according to a contemporary writer, were -appointed "to drive away the flies when the Pope celebrateth." - -The island Reichenau in Lake Constance, which derives its name from its -fertility and is especially famous for the products of its vineyards and -its orchards, was once so infested by venomous reptiles as to be -uninhabitable by human beings. Early in the eighth century, as the legend -goes, it was visited by St. Pirminius, and no sooner had he set foot upon -it than these creatures all crawled and wriggled into the water, so that -the surface of the lake was covered for three days and three nights with -serpents, scorpions and hideous worms. Peculiar vermifugal efficacy was -ascribed to the crosier of St. Magnus, the apostle of Algau, which was -preserved in the cloister of St. Mang at Füssen in Bavaria, and from 1685 -to 1770 was repeatedly borne in solemn procession to Lucerne, Zug, Schwyz -and other portions of Switzerland for the expulsion and extermination of -rats, mice, cockchafers and other insects. Sometimes formulas of -malediction were procured directly from the pope, which, like saints' -curses, could be applied without legal formalities. Thus in 1660 the -inhabitants of Lucerne paid four pistoles and one Roman thaler for a -document of this kind; on Nov. 15, 1731, the municipal council of Thonou -in Savoy resolved to join with other parishes of that province to obtain -from Rome an excommunication against insects, the expenses for which are -to be assessed _pro rata_;[2] in 1740 the commune of Piuro purchased from -His Holiness a similar anathema; in the same year the common council of -Chiavenna discussed the propriety of applying to Rome for an execratory -against beetles and bears; and in December 1752 it was proposed by the -same body to take like summary measures in order to get rid of a pest of -rodents. In 1729, 1730 and 1749 the municipal council of Lucerne ordered -processions to be made on St. Magnus' Day from the Church of St. Francis -to Peter's Chapel for the purpose of expelling weevils. This custom was -observed annually from 1749 to 1798. The pompous ceremony has been -superseded in Protestant countries by an officially appointed day of -fasting and prayer. - -In his "First Counsel" Chassenée not only treats of methods of procedure, -and gives forms of plaints to be drawn up and tendered to the tribunal by -the injured party, as well as useful hints to the pettifogger in the -exercise of his tortuous and tricky profession, but he also discusses many -legal principles touching the jurisdiction of courts, the functions of -judges, and other characteristic questions of civil, criminal, and -canonical law. Animals, he says, should be tried by ecclesiastical -tribunals, except in cases where the penalty involves the shedding of -blood. An ecclesiastical judge is not competent _in causa sanguinis_, and -can impose only canonical punishments, although he may have jurisdiction -in temporal matters and punish crimes not involving a capital sentence. -[_Nam judex ecclesiasticus in causa sanguinis non est competens judex, -licet habeat jurisdictionem in temporalibus et possit crimina poenam -sanguinis non existentia_ (_exigentia_ is obviously the correct reading) -_castigare_. Cons. prim. IV. § 5.] For this reason the Church never -condemned heretics to death, but, having decided that they should die, -gave them over to the secular power for formal condemnation, usually under -the hollow and hypocritical pretence of recommending them to mercy. In the -prosecution of animals the summons was commonly published from the parish -pulpit and the whole judicial process bore a distinctively ecclesiastical -character. In most cases the presiding judge or official was the vicar of -the parish acting as the deputy of the bishop of the diocese. Occasionally -the curate officiated in this capacity. Sometimes the trial was conducted -before a civil magistrate under the authority of the Church, or the matter -was submitted to the adjudication of a conjurer, who, however, appointed -two proctors to plead respectively for the plaintiff and the defendant and -who rendered his verdict in due legal form. Indeed, the word "conjurer" -seems to have been used as a popular designation of the person, whether -priest or layman, who exercised judicatory functions in such trials, -probably because, as a rule, the sentence could be executed only by -conjuration or the invocation of supernatural aid. - -Another point, which strikes us very comically, but which had to be -decided before the trial could proceed, was whether the accused were to be -regarded as clergy or laity. Chassenée thinks that there is no necessity -of testing each individual case, but that animals should be looked upon as -lay persons. This, he declares, should be the general presumption; but if -any one wishes to affirm that they have _ordinem clericatus_ and are -entitled to benefit of clergy, the burden of proof rests upon him and he -is bound to show it (_deberet estud probare_). Probably our jurist would -have made an exception in favour of the beetle, which entomologists call -_clerus_; it is certain, at any rate, that if a bug bearing this name had -been brought to trial, the learning and acuteness displayed in arguing the -point in dispute would have been astounding. We laugh at the subtilties -and quiddities of mediæval theologians, who seriously discussed such silly -questions as the digestibility of the consecrated elements in the -eucharist; but the importance attached to these trivialities was not so -much the peculiarity of a single profession as the mental habit of the -age, the result of scholastic training and scholastic methods of -investigation, which tainted law no less than divinity. Nevertheless the -ancillary relations of all other sciences and disciplines to theology -render the latter chiefly responsible for this fatal tendency. - -Chassenée also makes a distinction between punitive and preventive -purposes in the prosecution of animals, between inflicting penalties upon -them for crimes committed and taking precautionary measures to keep them -from doing damage. By this means he seeks to evade the objection, that -animals are incapable of committing crimes, because they are not endowed -with rational faculties. He then proceeds to show that "things not -allowable in respect to crimes already committed are allowable in respect -to crimes about to be committed in order to prevent them." Thus a layman -may not arrest an ecclesiastic for a delict fully consummated, but may -seize and detain him in order to hinder the consummation of a delict. In -such cases, an inferior may coerce and correct a superior; even an -irrational creature may put restraint upon a human being and hold him back -from wrong-doing. In illustration of this legal point he cites an example -from Holy Writ, where "Balaam, the prophet and servant of the Most High, -was rebuked by a she-ass." - -Chassenée endeavours to clinch his argument as usual by quoting biblical -texts and adducing incidents from legendary literature. The province of -zoö-psychology, which would have furnished him with better material for -the elucidation of his subject, he leaves untouched, simply because it was -unknown to him. If crime consists in the commission of deeds hurtful to -other sentient beings, knowing such actions to be wrong, then the lower -animals are certainly guilty of criminal offences. It is a -well-established fact, that birds, beasts and insects, living together in -communities, have certain laws, which are designed to promote the general -welfare of the herd, the flock or the swarm, and the violation of which by -individual members they punish corporally or capitally as the case may -require. It is likewise undeniable, that domestic animals often commit -crimes against man and betray a consciousness of the nature of their acts -by showing fear of detection or by trying to conceal what they have done. -Man, too, recognizes their moral responsibility by inflicting chastisement -upon them, and sometimes feels justified in putting incorrigible -offenders, a vicious bull, a thievish cat or a sheep-killing dog, -summarily to death. Of course this kind of punishment is chiefly -preventive, nevertheless it is provoked by acts already perpetrated and is -not wholly free from the element of retributive justice. Such a -proceeding, however, is arbitrary and autocratic, and if systematically -applied to human beings would be denounced as intolerable tyranny. -Chassenée insists that under no circumstances is a penalty to be imposed -except by judicial decision--_nam poena nunquam imponitur, nisi lex -expresse dicat_--and in support of this principle refers to the apostle -Paul, who declares that "sin is not imputed when there is no law." He -appears to think that any technical error would vitiate the whole -procedure and reduce the ban of the Church to mere _brutum fulmen_. If he -lays so great stress upon the observance of legal forms, which in the -criminal prosecution of brute beasts strike us as the caricature and farce -of justice, it is because he deems them essential to the effectiveness of -an excommunication. The slightest mispronunciation of a word, an incorrect -accentuation or false intonation in uttering a spell suffices to dissolve -the charm and nullify the occult workings of the magic. The lack of a -single link breaks the connection and destroys the binding force of the -chain; everything must be "well-thought, well-said and well-done," not -ethically, but ritually, as prescribed in the old Avestan formula: _humata -hûkhta huvarshta_. All the mutterings and posturings, which accompany the -performance of a Brahmanical sacrifice, or a Catholic mass, or any other -kind of incantation have their significance, and none of them can be -omitted without marring the perfection of the ceremonial and impairing its -power. An anathema of animals pronounced in accordance with the sentence -passed upon them by a tribunal, belongs to the same category of -conjurations and is rendered nugatory by any formal defect or judicial -irregularity. - -Sometimes the obnoxious vermin were generously forewarned. Thus the -grand-vicars of Jean Rohin, Cardinal Bishop of Autun, having been informed -that slugs were devastating several estates in different parts of his -diocese, on the 17th of August, 1487, ordered public processions to be -made for three days in every parish, and enjoined upon the said slugs to -quit the territory within this period under penalty of being accursed. On -the 8th of September, 1488, a similar order was issued at Beaujeu. The -curates were charged to make processions during the offices, and the slugs -were warned three times to cease from vexing the people by corroding and -consuming the herbs of the fields and the vines, and to depart; "and if -they do not heed this our command, we excommunicate them and smite them -with our anathema." In 1516, the official of Troyes pronounced sentence on -certain insects (_adversus brucos seu eurucas vel alia non dissimilia -animalia, Gallicè urebecs_, probably a species of _curculio_), which laid -waste the vines, and threatened them with anathema, unless they should -disappear within six days. Here it is expressly stated that a counsellor -was assigned to the accused, and a prosecutor heard in behalf of the -aggrieved inhabitants. As a means of rendering the anathema more -effective, the people are also urged to be prompt and honest in the -payment of tithes. Chassenée, too, endorses this view, and in proof of its -correctness refers to Malachi, where God promises to rebuke the devourer -for man's sake, provided all the tithes are brought into the storehouse. - -The archives of the old episcopal city of St. Jean-de-Maurienne contain -the original records of legal proceedings instituted against some -insects, which had ravaged the vineyards of St. Julien, a hamlet situated -on the route over Mt. Cenis and famous for the excellence of its vintage. -The defendants in this case were a species of greenish weevil (charançon) -known to entomologists as _rychites auratus_, and called by different -names, amblevin, bèche, verpillion, in different provinces of France. - -Complaint was first made by the wine-growers of St. Julien in 1545 before -François Bonnivard, doctor of laws. The procurator Pierre Falcon and the -advocate Claude Morel defended the insects, and Pierre Ducol appeared for -the plaintiffs. After the presentation and discussion of the case by both -parties, the official, instead of passing sentence, issued a proclamation, -dated the 8th of May, 1546, recommending public prayers and beginning with -the following characteristic preamble: "Inasmuch as God, the supreme -author of all that exists, hath ordained that the earth should bring forth -fruits and herbs (_animas vegetativas_), not solely for the sustenance of -rational human beings, but likewise for the preservation and support of -insects, which fly about on the surface of the soil, therefore it would be -unbecoming to proceed with rashness and precipitance against the animals -now actually accused and indicted; on the contrary, it would be more -fitting for us to have recourse to the mercy of heaven and to implore -pardon for our sins." Then follow instructions as to the manner in which -the public prayers are to be conducted in order to propitiate the divine -wrath. The people are admonished to turn to the Lord with pure and -undivided hearts (_ex toto et puro corde_), to repent of their sins with -unfeigned contrition, and to resolve to live henceforth justly and -charitably, and above all to pay tithes. High mass is to be celebrated on -three consecutive days, namely on May 20th, 21st, and 22nd, and the host -to be borne in solemn procession with songs and supplications round the -vineyards. The first mass is to be said in honour of the Holy Spirit, the -second in honour of the Blessed Virgin, and the third in honour of the -tutelar saint of the parish. At least two persons of each household are -required to take part in these religious exercises. A _procès-verbal_, -signed by the curate Romanet, attests that this programme was fully -carried out and that the insects soon afterwards disappeared. - -About thirty years later, however, the scourge was renewed and the -destructive insects were actually brought to trial. The proceedings are -recorded on twenty-nine folia and entitled: _De actis scindicorum -communitatis Sancti Julliani agentium contra animalia bruta ad formam -muscarum volantia coloris viridis communi voce appellata verpillions seu -amblevins_. The documents, which are still preserved in the archives of -St. Julien, were communicated by M. Victor Dalbane, secretary of the -commune, to M. Léon Ménebréa, who printed them in the appendix to his -volume: _De l'origine de la forme et de l'esprit des jugements rendus au -moyen-âge contre les animaux_. Chambery, 1846. This treatise appeared -originally in the twelfth tome of the _Mémoires de la Société Royale -Académique de Savoie_. - -It may be proper to add that Ménebréa's theory of "the spirit, in which -these judgments against animals were given," is wholly untenable. He -maintains that "these procedures formed originally only a kind of symbol -intended to revive the sentiment of justice among the masses of the -people, who knew of no right except might and of no law except that of -intimidation and violence. In the Middle Ages, when disorder reigned -supreme, when the weak remained without support and without redress -against the strong, and property was exposed to all sorts of attacks and -all forms of ravage and rapine, there was something indescribably -beautiful in the thought of assimilating the insect of the field to the -masterpiece of creation and putting them on an equality before the law. If -man should be taught to respect the home of the worm, how much more ought -he to regard that of his fellow-man and learn to rule in equity." - -This explanation is very fine in sentiment, but expresses a modern, and -not a mediæval way of thinking. The penal prosecution of animals, which -prevailed during the Middle Ages, was by no means peculiar to that period, -but has been frequently practised by primitive peoples and savage tribes; -neither was it designed to inculcate any such moral lesson as is here -suggested, nor did it produce any such desirable result. So far from -originating in a delicate and sensitive sense of justice, it was, as will -be more fully shown hereafter, the outcome of an extremely crude, obtuse, -and barbaric sense of justice. It was the product of a social state, in -which dense ignorance was governed by brute force, and is not to be -considered as a reaction and protest against club-law, which it really -tended to foster by making a travesty of the administration of justice and -thus turning it into ridicule. It was also in the interest of -ecclesiastical dignities to keep up this parody and perversion of a sacred -and fundamental institute of civil society, since it strengthened their -influence and extended their authority by subjecting even the caterpillar -and the canker-worm to their dominion and control. - -But to return to the records of the trial. On the 13th of April, 1587, the -case was laid before "his most reverend lordship, the prince-bishop of -Maurienne, or the reverend lord his vicar-general and official" by the -syndics and procurators, François Amenet and Petremand Bertrand, who, in -the name of the inhabitants of St. Julien, presented the following -statement and petition: "Formerly by virtue of divine services and -earnest supplications the scourge and inordinate fury of the aforesaid -animals did cease; now they have resumed their depredations and are doing -incalculable injury. If the sins of men are the cause of this evil, it -behoveth the representatives of Christ on earth to prescribe such measures -as may be appropriate to appease the divine wrath. Wherefore we the -afore-mentioned syndics, François Amenet and Petremand Bertrand, do appear -anew (_ex integro_) and beseech the official, first, to appoint another -procurator and advocate for the insects in place of the deceased Pierre -Falcon and Claude Morel, and secondly, to visit the grounds and observe -the damage, and then to proceed with the excommunication." - -In compliance with this request, the distinguished Antoine Filliol was -appointed procurator for the insects, with a moderate fee (_salario -moderato_), and Pierre Rembaud their advocate. The parties appeared before -the official on the 30th day of May and the case was adjourned to the 6th -of June, when the advocate, Pierre Rembaud, presented his answer to the -declaration of the plaintiffs, showing that their action is not -maintainable and that they should be nonsuited. After approving of the -course pursued by his predecessor in office, he affirms that his clients -have kept within their right and not rendered themselves liable to -excommunication, since, as we read in the sacred book of Genesis, the -lower animals were created before man, and God said to them: Let the earth -bring forth the living creature after his kind, cattle and creeping thing, -and beast of the earth after his kind; and he blessed them saying, Be -fruitful and multiply and fill the waters of the seas, and let fowl -multiply in the earth. Now the Creator would not have given this command, -had he not intended that these creatures should have suitable and -sufficient means of support; indeed, he has expressly stated that to every -thing that creepeth upon the earth every green herb has been given for -meat. It is therefore evident that the accused, in taking up their abode -in the vines of the plaintiffs, are only exercising a legitimate right -conferred upon them at the time of their creation. Furthermore, it is -absurd and unreasonable to invoke the power of civil and canonical law -against brute beasts, which are subject only to natural law and the -impulses of instinct. The argument urged by the counsel for the -plaintiffs, that the lower animals are made subject to man, he dismisses -as neither true in fact nor pertinent to the present case. He suggests -that the complainants, instead of instituting judicial proceedings, would -do better to entreat the mercy of heaven and to imitate the Ninevites, -who, when they heard the warning voice of the prophet Jonah, proclaimed a -fast and put on sackcloth. In conclusion, he demands that the petition of -the plaintiffs be dismissed, the monitorium revoked and annulled, and all -further proceedings stayed, to which end the gracious office of the judge -is humbly implored (_humiliter implorato benigno officio judicis_). - -The case was adjourned to the 12th and finally to the 19th of June, when -Petremand Bertrand, the prosecuting attorney, presented a lengthy -replication, of which the defendants' advocate demanded a copy with due -time for deliberation. This request led to a further adjournment till the -26th of June, but as this day turned out to be a _dies feriatus_ or -holiday, no business could be transacted until the 27th, when the advocate -of the commune, François Fay (who seems to have taken the place of Amenet, -if he be not the same person), in reply to the defendants' plea, argued -that, although the animals were created before man, they were intended to -be subordinate to him and subservient to his use, and that this was, -indeed, the reason of their prior creation. They have no _raison d'être_ -except as they minister to man, who was made to have dominion over them, -inasmuch as all things have been put under his feet, as the Psalmist -asserts and the apostle Paul reiterates. On this point, he concludes, our -opponent has added nothing refutatory of the views, which have been held -from time immemorial by our ancestors; we need only refer to the opinions -formerly expressed by the honourable Hippolyte Ducol as satisfactory. The -advocate for the defence merely remarked that he had not yet received the -document ordered on the 19th of June, and the further consideration of the -case was postponed till the 4th of July. Antoine Filliol then made a -rejoinder to the plaintiffs' replication, denying that the subordination -of the lower animals to man involves the right of excommunicating them, -and insisting upon his former position, which the opposing counsel had not -even attempted to disprove, namely, that the lower animals are subject -solely to natural law, "a law originating in the eternal reason and -resting upon a basis as immutable as that of the divine law of revelation, -since they are derived from the same source, namely, the will and power of -God." It is evident, he adds, that the action brought by the plaintiffs is -not maintainable and that judgment should be given accordingly. - -On the 18th of July, the same parties appear before the official of St. -Jean-de-Maurienne. The procurator of the insects demands that the case be -closed and the plaintiffs debarred from drawing up any additional -statements or creating any further delay by the introduction of irrelevant -matter, and requests that a decision be rendered on the documents and -declarations already adduced. The prosecuting attorney, whose policy seems -to have been to keep the suit pending as long as possible, applies for a -new term (_alium terminum_), which was granted. - -Meanwhile, in view of the law's long delay, other measures were taken for -the speedier adjustment of the affair by compromise. On the 29th of June, -1587, a public meeting was called at noon immediately after mass on the -great square of St. Julien, known as Parloir d'Amont, to which all hinds -and habitants (_manants et habitants_) were summoned by the ringing of the -church bell to consider the propriety and necessity of providing for the -said animals a place outside of the vineyards of St. Julien, where they -might obtain sufficient sustenance without devouring and devastating the -vines of the said commune. This meeting appears to have been held by the -advice of the plaintiffs' advocate, François Fay, and at the suggestion of -the official. A piece of ground in the vicinity was selected and set apart -as a sort of insect enclosure, the inhabitants of St. Julien, however, -reserving for themselves the right to pass through the said tract of land, -"without prejudice to the pasture of the said animals," and to make use of -the springs of water contained therein, which are also to be at the -service of the said animals; they reserve furthermore the right of working -the mines of ochre and other mineral colours found there, without doing -detriment to the means of subsistence of said animals, and finally the -right of taking refuge in this spot in time of war or in case of like -distress. The place chosen is called La Grand Feisse and described with -the exactness of a topographical survey, not only as to its location and -dimensions, but also as to the character of its foliage and herbage. The -assembled people vote to make this appropriation of land and agree to draw -up a conveyance of it "in good form and of perpetual validity," provided -the procurator and advocate of the insects may, on visitation and -inspection of the ground, express themselves satisfied with such an -arrangement; in witness whereof the protocol is signed "L. Prunier, -curial," and stamped with the seal of the commune. - -But this attempt of the inhabitants to conciliate the insects and to -settle their differences by mutual concessions did not put an end to the -litigation. On the 24th of July, an "Extract from the Register of the -Curiality of St. Julien," containing the proceedings of the public -meeting, was submitted to the court by Petremand Bertrand, procurator of -the plaintiffs, who called attention to the very generous offer made by -the commune and prayed the official to order the grant to be accepted on -the conditions specified, and to cause the defendants to vacate the -vineyards and to forbid them to return to the same on pain of -excommunication. Antoine Filliol, procurator of the insects, requested a -copy of the _procès-verbal_ and time for deliberation. The court complied -with this request and adjourned the case till "the first juridical day -after the harvest vacation," which fell on the 11th of August, and again -by common consent till the 20th of the same month. - -At this time, Charles Emanuel I., Duke of Savoy, was preparing to invade -the Marquisate of Saluzzo, and the confusion caused by the expedition of -troops over Mt. Cenis interfered with the progress of the trial, which was -postponed till the 27th of August, and again, since the passage of armed -men was still going on (_actento transitu armigerorum_), till the 3rd of -September, when Antoine Filliol declared that he could not accept for his -clients the offer made by the plaintiffs, because the place was sterile -and neither sufficiently nor suitably supplied with food for the support -of the said animals; he demanded, therefore, that the proposal be rejected -and the action dismissed with costs to the complainants (_petit agentes -repelli cum expensis_). The "egregious Petremand Bertrand," in behalf of -the plaintiffs, denies the correctness of this statement and avers that -the spot selected and set apart as an abode for the insects is admirably -adapted to this purpose, being full of trees and shrubs of divers kinds, -as stated in the conveyance prepared by his clients, all of which he is -ready to verify. He insists, therefore, upon an adjudication in his -favour. The official took the papers of both parties and reserved his -decision, appointing experts, who should in the meantime examine the -place, which the plaintiffs had proffered as an asylum for the insects, -and submit a written report upon the fitness of the same. - -The final decision of the case, after such careful deliberation and so -long delay, is rendered doubtful by the unfortunate circumstance that the -last page of the records has been destroyed by rats or bugs of some sort. -Perhaps the prosecuted weevils, not being satisfied with the results of -the trial, sent a sharp-toothed delegation into the archives to obliterate -and annul the judgment of the court. At least nothing should be thought -incredible or impossible in the conduct of creatures, which were deemed -worthy of being summoned before ecclesiastical tribunals and which -succeeded as criminals in claiming the attention and calling forth the -legal learning and acumen of the greatest jurists of their day. - -In the margin of the last page are some interesting items of expenses -incurred: "_pro visitatione III flor._," by which we are to understand -three florins to the experts, who were appointed to visit the place -assigned to the insects; then "_solverunt scindici Sancti Julliani incluso -processu Animalium sigillo ordinationum et pro copia que competat in -processu dictorum Animalium omnibus inclusis XVI flor._," which may be -summed up as sixteen florins for clerical work including seals; finally, -"_item pro sportulis domini vicarii III flor._," three florins to the -vicar, who acted as the bishop's official and did not receive a regular -fee, but was not permitted to go away empty-handed. The date, which -follows, Dec. 20, 1587, may be assumed to indicate the time at which the -trial came to an end, after a pendency of more than eight months. (_Vide_ -Appendix A.) - -In the legal proceedings just described, two points are presented with -great clearness and seem to be accepted as incontestable: first, the right -of the insects to adequate means of subsistence suited to their nature. -This right was recognized by both parties; even the prosecution did not -deny it, but only maintained that they must not trespass cultivated fields -and destroy the fruits of man's labour. The complainants were perfectly -willing to assign to the weevils an uncultivated tract of ground, where -they could feed upon such natural products of the soil as were not due to -human toil and tillage. Secondly, no one appears to have doubted for a -moment that the Church could, by virtue of its anathema, compel these -creatures to stop their ravages and cause them to go from one place to -another. Indeed, a firm faith in the existence of this power was the pivot -on which the whole procedure turned, and without it, the trial would have -been a dismal farce in the eyes of all who took part in it. - -It is related in the chronicles of an ancient abbey (_Le Père Rochex: -Gloire de l'Abbaye et Vallée de la Novalaise_), that St. Eldrad commanded -the snakes, which infested the environs of a priory in the valley of -Briançon, to depart, and, taking a staff in his hand, conducted them to a -desert place and shut them up in a cave, where they all miserably -perished. Perhaps the serpent, which suffered Satan to take possession of -its seductive form and thus played such a fatal part in effecting the fall -of man and in introducing sin into the world, may have been regarded as -completely out of the pale and protection of law, and as having no rights -which an ecclesiastical excommunicator or a wonder-working saint would be -bound to respect. As a rule, however, such an arbitrary abuse of -miraculous power to the injury or destruction of God's creatures was -considered illegal and unjustifiable, although irascible anchorites and -other holy men under strong provocation often gave way to it. Mediæval -jurists frowned upon summary measures of this sort, just as modern lawyers -condemn the practice of lynch-law as mobbish and essentially seditious, -and only to be excused as a sudden outburst of public indignation at some -exceptionally brutal outrage. - -Properly speaking, animals cannot be excommunicated, but only -anathematized; just as women, according to old English law, having no -legal status of their own and not being bound in frankpledge as members of -the decennary or tithable community, could not be outlawed, but only -"waived" or abandoned. This form of ban, while differing theoretically -from actual outlawry, was practically the same in its effects upon the -individual subjected to it. Excommunication is, as the etymology of the -word implies, the exclusion from the communion of the Church and from -whatever spiritual or temporal advantages may accrue to a person from this -relation. It is one of the consequences of an anathema, but is limited in -its operation to members of the ecclesiastical body, to which the lower -animals do not belong. This was the generally accepted view, and is the -opinion maintained by Gaspard Bailly, advocate and councillor of the -Sovereign Senate of Savoy, in his _Traité des Monitoires, avec un -Plaidoyer contre les Insects_, printed at Lyons in 1668, but it has not -always been held by writers on this subject, some of whom do not recognize -this distinction between anathema and excommunication on the authority of -many passages of Holy Writ, affirming that, as the whole creation was -corrupted by the fall, so the atonement extends to all living creatures, -which are represented as longing for the day of their redemption and -regeneration. - -One of the strong points made by the counsel for the defence in -prosecutions of this kind was that these insects were sent to punish man -for his sins, and should therefore be regarded as agents and emissaries of -the Almighty, and that to attempt to destroy them or to drive them away -would be to fight against God (_s'en prendre à Dieu_). Under such -circumstances, the proper thing to do would be, not to seek legal redress -and to treat the noxious creatures as criminals, but to repent and humbly -to entreat an angry Deity to remove the scourge. This is still the -standpoint of Christian orthodoxy, Protestant as well as Catholic, and the -argument applies with equal force to the impious and atheistic -substitution of Paris green and the chlorate of lime for prayer and -fasting as exterminators of potato-bugs. The modern, like the mediæval -horticulturist may ward off devouring vermin from his garden by the use of -ashes, but he strews them on his plants instead of sprinkling them on his -own head, and thus indicates to what extent scientific have superseded -theological methods in the practical affairs of life. - -Thomas Aquinas, the "angelic doctor," in his _Summa Theologiæ_ raises the -query, whether it is permissible to curse irrational creatures (_utrum -liceat irrationabiles creaturas adjurare_). He states, in the first place, -that curses and blessings can be pronounced only upon such things as are -susceptible of receiving evil or good impressions from them, or in other -words, upon sentient and rational beings, or upon irrational creatures and -insentient things in their relation to rational beings, so that the latter -are the objects ultimately aimed at and favourably or unfavourably -affected. Thus God cursed the earth, because it is essential to a man's -subsistence; Jesus cursed the barren fig-tree symbolizing the Jews, who -made a great show of leafage in the form of rites and ceremonies, but bore -no fruits of righteousness; Job cursed the day on which he was born, -because he took from his mother's womb the taint of original sin; David -cursed the rocks and mountains of Gilboa, because they were stained with -the blood of "the beauty of Israel"; in like manner the Lord sends locusts -and blight and mildew to destroy the harvests, because these are -intimately connected with the happiness of mankind, whose sins he wishes -to punish. - -It is laid down as a legal maxim by mediæval jurisprudents that no animal -devoid of understanding can commit a fault (_nec enim potest animal -injuriam fecisse quod sensu caret_). This doctrine is endorsed by the -great theologian and scholastic Thomas of Aquino. If we regard the lower -animals, he says, as creatures coming from the hand of God and employed by -him as agents for the execution of his judgments, then to curse them would -be blasphemous; if, on the other hand, we curse them _secundem se_, i.e. -merely as brute beasts, then the malediction is odious and vain and -therefore unlawful (_est odiosum et vanum et per consequens illicitum_). -There is, however, another ground, on which the right of excommunication -or anathematization may be asserted and fully vindicated, namely, that the -lower animals are satellites of Satan "instigated by the powers of hell -and therefore proper to be cursed," as the Doctor angelicus puts it. -Chassenée refers to this opinion in the treatise already cited (I. § 75), -and adds "the anathema then is not to be pronounced against the animals as -such, but should be hurled inferentially (_per modum conclusionis_) at the -devil, who makes use of irrational creatures to our detriment." This -notion seems to have been generally accepted in the Middle Ages, and the -fact that evil spirits are often mentioned in the Bible metaphorically or -symbolically as animals and assumed to be incarnate in the adder, the asp, -the basilisk, the dragon, the lion, the leviathan, the serpent, the -scorpion, etc., was considered confirmatory of this view. - -But not all animals were regarded as diabolical incarnations; on the -contrary, many were revered as embodiments and emblems of divine -perfections. In a work entitled _Le Liure du Roy Modus et de la Reyne -Racio_ (The Book of King Mode and Queen Reason), which, as the colophon -records, was "printed at Chambery by Anthony Neyret in the year of grace -one thousand four hundred and eighty-six on the thirtieth day of October," -King Mode discourses on falconry and venery in general. Queen Reason -brings forward, in reply to these rather conventional commonplaces, -"several fine moralities," and dilates on the natural and mystic qualities -of animals, which she divides into two classes, sweet beasts (_bestes -doulces_) and stenchy beasts (_bestes puantes_). Foremost among the sweet -beasts stands that which Milton characterizes as - - "Goodliest of all the forest, hart and hind." - -According to the Psalmist, the hart panting after the water-brooks -represents the soul thirsting for the living God and is the type of -religious ardour and aspiration. It plays an important part in the legends -of saints, acts as their guide, shows them where holy relics are -concealed, and causes St. Eustace and St. Hubert to abandon the chase and -to lead lives of pious devotion by appearing to them with a luminous cross -between its antlers. The ten branches of its horns symbolize the ten -commandments of the Old Testament and signify in the Roman ritual the ten -fingers of the outstretched hand of the priest as he works the perpetual -miracle of transubstantiation of the eucharist. - -Chief of the stenchy beasts is the pig. In paganism, which to the -Christians was merely devil-worship, the boar was an object of peculiar -adoration; for this reason the farrow of the sow is supposed to number -seven shotes, corresponding to the seven deadly sins. To the same class of -offensive beasts belong the wolf, typical of bad spiritual shepherds, and -the fox, which is described as follows: "Reynard is a beast of small size, -with red hair, a long bushy tail and an evil physiognomy, for his visage -is thin and sharp, his eyes deep-set and piercing, his ears small, -straight and pointed; moreover he is deceitful and tricky above all other -beasts and exceedingly malicious." "We are all," adds Queen Reason in a -moralizing strain, "more or less of the brotherhood of Saint Fausset, -whose influence is now-a-days quite extended." Among birds the raven is -pre-eminently a malodorous creature and imp of Satan, whereas the dove is -a sweet beast and the chosen vessel for the outpouring of the Holy Spirit, -the form in which the third person of the Trinity became incarnate. - -This division of beasts corresponds in principle to that which is given in -the Avesta, and according to which all animals are regarded as belonging -either to the good creation of Ahuramazda or to the evil creation of -Angrô-mainyush. The world is the scene of perpetual conflict between these -hostile forces summed up in the religion and ethics of Zarathushtra as the -trinity of the good thought, the good word, and the good deed (_humata_, -_hûkhta_, _huvarshta_), which are to be fostered in opposition to the evil -thought, the evil word, and the evil deed (_dushmata_, _duzhûkhta_, -_duzhvarshta_), which are to be constantly combated and finally -suppressed. Every man is called upon by the Iranian prophet to choose -between these contraries; and not only the present and future state of his -own soul, the complexion of his individual character, but also the welfare -of the whole world, the ultimate destiny of the universe, depend, to no -inconsiderable extent, upon his choice. His thoughts, words, and deeds do -not cease with the immediate effect which they are intended to produce, -but, like force in the physical world, are persistent and indestructible. -As the very slightest impulse given to an atom of matter communicates -itself to every other atom, and thus disturbs the equilibrium of the -globe--the footfall of a child shaking the earth to its centre--so the -influence of every human life, however small, contributes to the general -increase and ascendency of either good or evil, and helps to determine -which of these principles shall ultimately triumph. In the universal -strife of these "mighty opposites," the vicious are the allies of the -devil; while the virtuous are not merely engaged in working out their own -salvation, but have also the ennobling consciousness of being -fellow-combatants with the Deity, who needs and appreciates their services -in overcoming the adversary. This sense of solidarity with the Best and -the Highest imparts additional elevation and peculiar dignity to human -aims and actions, and lends to devotion a warmth of sympathy and fervour -of enthusiasm springing from personal attachment and loyalty, which it is -difficult for the Religion of Humanity to inspire. The fact, too, that -evil exists in the world, not by the will and design of the Good Being, -but in spite of him, and that all his powers are put forth to eradicate -it, while detracting from his omnipotence, frees him from all moral -obliquity and exalts his character for benevolence, thus rendering him far -more worthy of love and worship and a much better model for human -imitation than that "dreadful idealization of wickedness" which is called -God in the Calvinistic creed. The idea that the humblest person may, by -the purity and rectitude of his life, not only strengthen himself in -virtue, but also increase the actual aggregate of goodness in the universe -and even endue the Deity with greater power and aggressive energy in -subduing and extirpating evil, is surely a sublime thought and a source of -lofty inspiration and encouragement in well-doing, although it has been -degraded by Parsi Dasturs--as all grand conceptions and ideals are apt to -be under priestly influences--into a ridiculous and childish hatred of -snakes, scorpions, frogs, lizards, water-rats, and other animals supposed -to have been produced by Angrô-mainyush. - -Plato held a similar theory of creation, regarding it not as the -manifestation of pure benevolence endowed with almighty power, but rather -as the expression of perfect goodness working at disadvantage in an -intractable material, which by its inherent stubbornness prevented the -full embodiment and realization of the original purpose and desire of the -Creator or Cosmourgos, who was therefore obliged to content himself with -what was, under the circumstances, the only possible, but by no means the -best imaginable, world. The Manicheans attributed the same unsatisfactory -result to the activity of an evil principle, which thwarted the complete -actualization of the designs of the Deity. So conspicuous, indeed, is the -defectiveness of nature as a means of promoting the highest conceivable -human happiness, so marked and manifold are the causes of suffering in all -spheres of sentient existence, and so often do the elements seem to -conspire for the destruction of mankind, raging relentlessly like a wild -beast - - "Red in tooth and claw - With ravin," - -that every cosmogony has been compelled to assume the persistent -intervention of some malignant spirit or perverse agency as the only -rational explanation of such a condition of things. The orthodox -Christianity of to-day gives over the earth entirely to the sovereignty of -Satan, the successful usurper of Eden, and instead of bidding the -righteous to look forward to the final re-enthronement and absolute -supremacy of truth and goodness in this world as the - - "One far-off divine event, - To which the whole creation moves," - -consoles them with the vague promise of compensation in a future state of -being. Even this remote prospect of redemption is confined to a select -few; not only is the earth destined to be burned with fire on account of -its utter corruption, but the great majority of its inhabitants are doomed -to eternal torments in the abode of evil spirits. - -Scientific research also leads to the same conclusions in respect to the -incompleteness of Nature's handiwork, which it is the function of art and -culture to amend and improve. Everywhere the correcting hand and -contriving brain of man are needed to eliminate the worthless and noxious -productions, in which Nature is so fatally prolific, and to foster and -develop those that are useful and salutary, thus beautifying and ennobling -all forms of vegetable and animal life. By a like process man himself has -attained his present pre-eminence. Through long ages of strife and -struggle he has emerged from brutishness and barbarism, and rising by a -slow, spiral ascent, scarcely perceptible for generations, has been able -gradually to - - "Move upward, working out the beast, - And let the ape and tiger die." - -The more man increases in wisdom and intellectual capacity, the more -efficient he becomes as a co-worker with the good principle. At the same -time, every advance which he makes in civilization brings with it some new -evil for him to overcome; or, as the Parsi would express it -mythologically, every conquest achieved by Ahuramazda and his allies -stimulates Angrômainyush and his satellites to renewed exertions, who -convert the most useful discoveries, like dynamite, into instruments of -diabolical devastation. The opening of the Far West in the United States -to agriculture and commerce, and the completion of the Pacific Railroad, -not only served to multiply and diffuse the gifts of the beneficent and -bountiful spirit (_speñtô mainyush_), but also facilitated the propagation -and spread of the plagues of the grasshopper and the Colorado beetle. The -power of destruction insidiously concealed in the minutest insect organism -often exceeds that of the tornado and the earthquake, and baffles the most -persistent efforts of human ingenuity to resist it. The genius and energy -of Pasteur were devoted for years to the task of detecting and destroying -a microscopic parasite, which threatened to ruin for ever the silk -industry of France; and the Phylloxera and Doryphora still continue to -ravage with comparative impunity the vineyards of Europe and the -potato-fields of America, defying at once all the appliances of science -for their extermination and all the attempts of casuistic theology to -reconcile such scourges with a perfectly benevolent and omnipotent Creator -and Ruler of the Universe. It is the observation of phenomena like these -that confirms the modern Parsi in the faith of his fathers, and reveals to -him, in the operations of nature and the conflicts of life, unquestionable -evidences of a contest between warring elements personified as Hormazd -and Ahriman, the ultimate issue of which is to be the complete triumph of -the former and the consequent purification and redemption of the world -from the curse of evil. The Parsi, however, recognizes no Saviour, and -repudiates as absurd and immoral any scheme of atonement whereby the -burden of sin can be shifted from the shoulders of the guilty to those of -an innocent, vicarious victim. Every person must be redeemed by his own -good thoughts, words, and deeds, as creation must be redeemed by the good -thoughts, words, and deeds of the race. After death, the character of each -individual thus formed appears to him, either in the form of a beautiful -and brilliant maiden, who leads him over the Chinvad (or gatherer's) -bridge, into the realms of everlasting light, or in the form of a foul -harlot, who thrusts him down into regions of eternal gloom. - -But to return from this digression; it is not only in the Venidad that -certain classes of animals are declared to be creations of the archfiend, -and therefore embodiments of devils; additional proofs of this doctrine -were derived by mediæval writers from biblical and classical sources. A -favourite example was the metamorphosis of Nebuchadnezzar, who, when given -over to Satan, dwelt with the beasts of the field and ate grass as oxen, -while his hair grew like eagles' feathers and his nails like birds' -claws. Still more numerous and striking instances of this kind were drawn -from pagan mythology, which, being of diabolical origin, would naturally -be prolific of such phenomena. Thus, besides centaurs and satyrs, "dire -chimeras" and other "delicate monsters," there were hybrids like the -semi-dragon Cecrops and transformations by which Io became a heifer, -Dædalion a sparrow-hawk, Corone a crow, Actæon a stag, Lyncus a lynx, Mæra -a dog, Calisto a she-bear, Antigone a stork, Arachne a spider, Iphigenia a -roe, Talus a partridge, Itys a pheasant, Tereus Ascalaphus and Nyctimene -owls, Philomela a nightingale, Progne a swallow, Cadmus and his spouse -Harmonia snakes, Decertis a fish, Galanthis a weasel, and the warriors of -Diomedes birds, while the companions of Ulysses were changed by Circe, the -prototype of the modern witch, into swine. All these metamorphoses are -adduced as the results of Satanic agencies and proofs of the tendency of -evil spirits to manifest themselves in bestial forms. - -Towards the end of the ninth century the region about Rome was visited by -a dire plague of locusts. A reward was offered for their extermination and -the peasants gathered and destroyed them by millions; but all efforts were -in vain, since they propagated faster than it was possible to kill them. -Finally Pope Stephen VI. prepared great quantities of holy water and had -the whole country sprinkled with it, whereupon the locusts immediately -disappeared. The formula used in consecrating the water and devoting it to -this purpose implies the diabolical character of the vermin against which -it was directed: "I adjure thee, creature water, I adjure thee by the -living God, by Him, who at the beginning separated thee from the dry land, -by the true God, who caused thee to fertilize the garden of Eden and -parted thee into four heads, by Him, who at the marriage of Cana changed -thee into wine, I adjure thee that thou mayst not suffer any imp or -phantom to abide in thy substance, that thou mayst be indued with -exorcising power and become a source of salvation, so that when thou art -sprinkled on the fruits of the field, on vines, on trees, on human -habitations in the city or in the country, on stables, or on flocks, or if -any one may touch or taste thee, thou shalt become a remedy and a relief -from the wiles of Satan, that through thee plagues and pestilence may be -driven away, that through contact with thee weevils and caterpillars, -locusts and moles may be dispersed and the maliciousness of all visible -and invisible powers hostile to man may be brought to nought." In the -prayers which follow, the water is entreated to "preserve the fruits of -the earth from insects, mice, moles, serpents and other foul spirits." - -This subject was treated in a lively and entertaining manner by a Jesuit -priest, Père Bougeant, in a book entitled _Amusement Philosophique sur le -Langage des Bestes_, which was written in the form of a letter addressed -to a lady and published at Paris in 1739. In the first place, the author -refers to the intelligence shown by animals and refutes the Cartesian -theory that they are mere machines or animated automata. This tenet, we -may add, was not original with Descartes, but was set forth at length by a -Spanish physician, Gomez Pereira, in a bulky Latin volume bearing the -queer dedicatory title: "_Antoniana Margarita opus nempe physicis, medicis -ac theologis non minus utile quam necessarium_," and printed in 1554, -nearly a century before the publication of Descartes' _Meditationes de -prima philosophia and Principia philosophiae_, which began a new epoch in -the history of philosophy. - -If animals are nothing but ingenious pieces of mechanism, argues the -Jesuit father, then the feelings of a man towards his dog would not differ -from those which he entertains towards his watch, and they would both -inspire him with the same kind of affection. But such is not the case. -Even the strictest Cartesian would never think of petting his chronometer -as he pets his poodle, or would expect the former to respond to his -caresses as the latter does. Practically he subverts his own metaphysical -system by the distinction which he makes between them, treating one as a -machine and the other as a sentient being, endowed with mental powers and -passions corresponding, in some degree, to those which he himself -possesses. We infer from our own individual consciousness that other -persons, who act as we do, are free and intelligent agents, as we claim to -be. The same reasoning applies to the lower animals, whose manifestations -of joy, sorrow, hope, fear, desire, love, hatred and other emotions, akin -to those passing in our own minds, prove that there is within them a -spiritual principle, which does not differ essentially from the human -soul. - -But this conclusion, he adds, is contrary to the teachings of the -Christian religion, since it involves the immortality of animal souls and -necessitates some provision for their reward or punishment in a future -life. If they are capable of merits and demerits and can incur praise and -blame, then they are worthy of retribution hereafter and there must be a -heaven and a hell prepared for them, so that the pre-eminence of a man -over a beast as an object of God's mercy or wrath is lost. "Beasts, in -that case, would be a species of man or men a species of beast, both of -which propositions are incompatible with the teachings of religion." The -only means of reconciling these views, endowing animals with intellectual -sense and immortal souls without running counter to Christian dogmas, is -to assume that they are incarnations of evil spirits. - -Origen held that the scheme of redemption embraced also Satan and his -satellites, who would be ultimately converted and restored to their -primitive estate. Several patristic theologians endorsed this notion, but -the Church rejected it as heretical. The devils are, therefore, from the -standpoint of Catholic orthodoxy, irrevocably damned and the blood of -Christ has made no atonement for them. But, although their fate is sealed -their torments have not yet begun. If a man dies in his sins, his soul, as -soon as it departs from his body, receives its sentence and goes straight -to hell. The highest ecclesiastical authorities have decided that this is -not true of devils, who, although condemned to everlasting fire, do not -enter upon their punishment until after the judgment-day. This view is -supported by many passages and incidents of Holy Writ. Thus Christ -declares that, when the Son of man shall come in his glory, he shall say -unto them on his left hand, "Depart from me, ye cursed, into everlasting -fire prepared for the devil and his angels." Here it is not stated that -the devils are already burning, but that the fire has been "prepared" for -them, a form of expression which leads us to infer that they were not yet -in it. Again the devils, which Christ drove out of the two "exceeding -fierce" demoniacs, protested against such interference, saying, "Art thou -come hither to torment us before the time?" This question has no -significance, unless we suppose that they had a right to inhabit such -living beings as had been assigned to them, until the time of their -torment should come on the last day. Père Bougeant is furthermore of the -opinion that, when these devils were sent miraculously and therefore -abnormally into the swine, they came into conflict with the devils already -in possession of the pigs, and thus caused the whole herd to run violently -down a steep place into the sea. Even a hog, he thinks, could not stand it -to harbour more than one devil at a time, and would be driven to suicide -by having an intrinsic and superfluous demon conjured into it. A still -more explicit and decisive declaration on this point is found in the -Epistle of Jude and the Second Epistle of Peter, where it is stated that -the angels which kept not their first estate the Lord hath reserved in -everlasting chains under darkness unto the judgment of the great day. -These words are to be understood figuratively as referring to the -irrevocableness of their doom and the durance vile to which they are -meanwhile subjected. That they are held in some sort of temporary custody -and are not actually undergoing, but still awaiting the punishment, which -divine justice has imposed upon them, the sacred scriptures and the -teachings of the Church leave no manner of doubt. - -Now the question arises as to what these legions of devils are doing in -the meantime. Some of them are engaged in "going to and fro in the earth -and walking up and down in it," in order to spy out and take advantage of -human infirmities. God himself makes use of them to test the fealty of men -and their power of holding fast to their integrity under severe -temptations, just as the Creator made fossils and concealed them in the -different strata of the earth, in order to see whether Christian faith in -the truth of revelation would be strong enough to resist the seductions of -"science falsely so called." Other devils enter into living human bodies -and give themselves up to evil enchantments as wizards and witches; others -still reanimate corpses or assume the form and features of the dead and -wander about as ghosts and hobgoblins. Not only were pagans regarded by -the Christian Church as devil-worshippers and exorcised before being -baptized, but it is also a logical deduction from the doctrine of original -sin, that a devil takes possession of every child as soon as it is born -and remains there until expelled by an ecclesiastical functionary, who -combines the office of priest with that of conjurer and is especially -appointed for this purpose. Hence arose the necessity of abrenunciation, -as it was called, which preceded baptism in the Catholic Church and which -Luther and the Anglican reformers retained. Before the candidate was -christened he was exorcised and adjured personally, if an adult, or -through a sponsor, if an infant, to "forsake the devil and all his works." -These words, which still hold a place in the ritual, but are now repeated -in a perfunctory manner by persons, who have no conception of the magic -potency formerly ascribed to them, are a survival of the old formula of -exorcism. In the seventeenth century there was a keen competition between -the Roman Catholic and the Lutheran clergy in casting out devils, the -former claiming that to them alone had been transmitted the exorcising -power conferred by Christ upon his apostles. The Protestant churches -finally gave up the hocus-pocus and during the eighteenth century it fell -into general discredit and disuse among them, although some of the -stiffest and most conservative Lutherans never really abandoned it in -principle and have recently endeavoured to revive it in practice. - -The Catholic Church, on the contrary, still holds that men, women and -cattle may be possessed by devils and prescribes the means of their -expulsion. In a work entitled _Rituale ecclesiasticum ad usum clericorum -S. Fransisci_ by Pater Franz Xaver Lohbauer (Munich, 1851), there is a -chapter on the mode of helping those who are afflicted by demons (_Modus -juvandi afflictos a daemone_). The author maintains that nearly all -so-called nervous diseases, hysteria, epilepsy, insanity, and milder forms -of mental alienation, are either the direct result of diabolical agencies -or attended and greatly aggravated by them. A sound mind in a sound body -may make a man devil-proof, but Satan is quick to take advantage of his -infirmities in order to get possession of his person. The adversary is -constantly lying in wait watching for and trying to produce physical -derangements as breaches in the wall, through which he may rush in and -capture the citadel of the soul. In all cases of this sort the priest is -to be called in with the physician, and the medicines are to be blessed -and sprinkled with holy water before being administered. Exorcisms and -conjurations are not only to be spoken over the patient, but also to be -written on slips of consecrated paper and applied, like a plaster, to the -parts especially affected. The physician should keep himself supplied with -these written exorcisms, to be used when it is impossible for a priest to -be present. As with patent medicines, the public is warned against -counterfeits, and no exorcism is genuine unless it is stamped with the -seal and bears the signature of the bishop of the diocese. According to -Father Lohbauer, the demon is the efficient cause of the malady, and there -can be no cure until the evil one is cast out. This is the office of the -priest; the physician then heals the physical disorder, repairing the -damage done to the body, and, as it were, stopping the gaps with his drugs -so as to prevent the demon from getting in again. Thus science and -religion are reconciled and work together harmoniously for the healing of -mankind. - -The Catholic Church has a general form of _Benedictio a daemone -vexatorum_, for the relief of those vexed by demons; and Pope Leo XIII., -who was justly esteemed as a man of more than ordinary intelligence and -more thoroughly imbued with the modern spirit than any of his -predecessors, composed and issued, November 19, 1890, a formula of -_Exorcismus in Satanam et Angelos Apostatas_ worthy of a place in any -mediæval collection of conjurations. His Holiness never failed to repeat -this exorcism in his daily prayers, and commended it to the bishops and -other clergy as a potent means of warding off the assaults of Satan and of -casting out devils. In 1849 the Bishop of Passau published a _Manuale -Benedictionum_, and as late as 1893 Dr. Theobald Bischofberger described -and defended the practice of the papal see, in this respect, in a brochure -printed in Stuttgart and entitled _Die Verwaltung des Exorcistats nach -Massgabe der römischen Benediktionale_. - -That these formulas are still deemed highly efficacious is evident from -the many recent cases in which they have been employed. Thus in 1842 a -devil named Ro-ro-ro-ro took possession of "a maiden of angelic beauty" in -Luxemburg and was cast out by Bishop Laurentius. This demon claimed to be -one of the archangels expelled from heaven, and appears to have rivalled -Parson Stöcker and Rector Ahlwardt in Anti-semitic animosity; when the -name of Jesus was mentioned, he cried out derisively: "O, that Jew! Didn't -he have to drink gall?" When commanded to depart, he begged that he might -go into some Jew. The bishop, however, refused to give him leave and bade -him "go to hell," which he forthwith did, "moaning as he went, in -melancholy tones, that seemed to issue from the bowels of the earth, -'Burning, burning, everlastingly burning in hell!' The voice was so sad," -adds the bishop, "that we should have wept for sheer compassion, had we -not known that it was the devil." - -Again, a lay brother connected with an educational institute in Rome -became diabolically possessed on January 3, 1887, and was exorcised by -Father Jordan. In this instance the leading spirit was Lucifer himself, -attended by a host of satellites, of whom Lignifex, Latibor, Monitor, -Ritu, Sefilie, Shulium, Haijunikel, Exaltor, and Reromfex were the most -important. It took about an hour and a half to cast out these demons the -first time, but they renewed their assaults on February 10th, 11th, and -17th, and were not completely discomfited and driven back into the -infernal regions until February 23rd, and then only by using the water of -Lourdes, which, as Father Jordan states, acted upon them like poison, -causing them to writhe to and fro. Lucifer was especially rude and saucy -in his remarks. Thus, for example, when Father Jordan said, "Every knee in -heaven and on the earth shall bow to the name of Jesus," the fallen "Son -of the Morning" retorted, "Not Luci, not Luci--never!" - -It would be easy to multiply authentic reports of things of this sort that -have happened within the memory of the present generation, such as the -exorcism of a woman of twenty-seven at Laas in the Tyrol in the spring of -1892, and the expulsion of an evil spirit from a boy ten years of age at -Wemding in Bavaria by a capuchin, Father Aurelian, July 13th and 14th, -1891, with the sanction of the bishops of Augsburg and Eichstätt. In the -latter case we have a circumstantial account of the affair by the exorcist -himself, who, in conclusion, uses the following strong language: -"Whosoever denies demoniacal possession in our days confesses thereby that -he has gone astray from the teaching of the Catholic Church; but he will -believe in it when he himself is in the possession of the devil in hell. -As for myself I have the authority of two bishops." In a pamphlet on this -subject printed at Munich in 1892, and entitled _Die Teufelsaustreibung in -Wemding_, the author, Richard Treufels, takes the same view, declaring -that diabolical possession "is an incontestable fact, confirmed by the -traditions of all nations of ancient and modern times, by the unequivocal -testimony of the Old and New Testaments, and by the teaching and practice -of the Catholic Church." Christ, he says, gave his disciples power and -authority over all devils to cast them out, and the same power is -divinely conferred upon every priest by his consecration, although it is -never to be exercised without the permission of his bishop. - -Doubtless modern science by investigating the laws and forces of nature is -gradually diminishing the realm of superstition; but there are vast -low-lying plains of humanity that have not yet felt its enlightening and -elevating influence. It has been estimated that nine-tenths of the rural -population of Europe and ninety-nine hundredths of the peasantry, living -in the vicinity of a cloister and darkened by its shadow, believe in the -reality of diabolical possession and attribute most maladies of men and -murrain in cattle to the direct agency of Satan, putting their faith in -the "metaphysical aid" of the conjurer rather than in medical advice and -veterinary skill. - -Unfortunately this belief is not confined to Catholics and boors, but is -held by Protestants, who are considered persons of education and superior -culture. Dr. Lyman Abbott asserted in a sermon preached in Plymouth -Church, that "what we call the impulses of our lower nature are the -whispered suggestions of fiend-like natures, watching for our fall and -exultant if they can accomplish it." But while affirming that "evil -spirits exercise an influence over mankind," and that cranks like Guiteau, -the assassin of President Garfield, are diabolically possessed, the -reverend divine would hardly risk his reputation for sanity by attempting -to exorcise the supposed demon. The Catholic priest holds the same view, -but has the courage of his convictions and goes solemnly to work with -bell, book and candle to effect the expulsion of the indwelling fiend. - -The fact that such methods of healing are sometimes successful is adduced -as conclusive proof of their miraculous character; but this inference is -wholly incorrect. Professor Dr. Hoppe, in an essay on _Der Teufels- und -Geisterglaube und die psychologische Erklärung des Besessenseins_ -(_Allgemeine Zeitschrift für Psychiatrie_, Bd. LV. p. 290), gives a -psychological explanation of these puzzling phenomena. "The priest," he -says, "exerts a salutary influence upon the brain through the respect and -dignity which he inspires, just as Christ in his day wrought upon those -who were sick and possessed with devils." Indeed, it is expressly stated -by the evangelist that Jesus did not attempt to do wonderful works among -people who did not believe. According to this theory the exorcism effects -a cure by its powerful action on the imagination, just as there are -frequent ailments, for which a wise physician administers bread pills and -a weak solution of powdered sugar as the safest and best medicaments. -Professor Hoppe, therefore, approves of "priestly conjurations for the -expulsion of devils as a psychical means of healing," and thinks that the -more ceremoniously the rite can be performed in the presence of grave and -venerable witnesses, the more effective it will be. This opinion is -endorsed by a Catholic priest, Friedrich Jaskowski, in a pamphlet entitled -_Der Trierer Rock und seine Patienten vom Jahre 1891_ (Saarbrücken: Carl -Schmidtke, 1894). The author belongs to the diocese of Trier and is -therefore under the jurisdiction of the bishop, Dr. Felix Korum, whose -statements concerning the miracles wrought and the evidences of divine -mercy manifested during the exhibition of the "holy coat" in 1891 he -courageously reviews and conclusively refutes. The bishop had printed what -he called "documentary proofs," consisting of certificates issued by -obscure curates and country doctors, that certain persons suffering -chiefly from diseases of the nervous system had been healed, and sought to -discover in these cures the working of divine agencies. Jaskowski shows -that in several instances the persons said to have found relief died -shortly afterwards, and maintains that where cures actually occurred they -"were not due to a miracle or any direct interference of God with the -established order of things, but happened in a purely natural manner." He -quotes the late Professor Charcot, Dr. Forel, and other neuropathologists -to establish the fact that hetero-suggestion emanating from a physician or -priest, or auto-suggestion originating in the person's own mind, may -often be the most effective remedy for neurotic disorders of every kind. -In auto-suggestion the patient is possessed with the fixed idea that the -doing of a certain thing, which may be in itself absolutely indifferent, -will afford relief. As an example of this faith-cure Jaskowski refers to -the woman who was diseased with an issue of blood, and approaching Jesus -said within herself: "If I may but touch his garment, I shall be whole." -This is precisely the position taken by Jesus himself, who turned to the -woman and said: "Daughter, be of good comfort; thy faith hath made thee -whole." Jaskowski also quotes the declaration of the evangelist referred -to above, that in a certain place the people's lack of faith prevented -Jesus from doing many wondrous works, and does not deny that on this -principle, which is now recognized by the most eminent physicians, some -few of the hundreds of pilgrims may have been restored to health by -touching the holy coat of Trier; and there is no doubt that the popular -belief in Bishop Korum's assertion that it is the same garment which Jesus -wore and the woman touched, would greatly increase its healing efficacy -through the force of auto-suggestion (see my article on "Recent -Recrudescence of Superstition" in Appleton's _Popular Science Monthly_ for -Oct. 1895, pp. 762-66). - -The Bishop of Bamberg in Bavaria has been stigmatized as a hypocrite -because he sends the infirm of his flock on a pilgrimage to Lourdes or -Laas or some other holy shrine, while he prefers for himself the profane -waters of Karlsbad or Kissingen. But in so doing he is not guilty of any -inconsistency, since a journey to sacred places and contact with sacred -relics would not act upon him with the same force as upon the ignorant and -superstitious masses of his diocese. His conduct only evinces his -disbelief in the supernatural character of the remedies he prescribes. The -distinguished French physician, Professor Charcot, as already mentioned, -recognized the curative power of faith under certain circumstances, and -occasionally found it eminently successful in hysterical and other purely -nervous affections. In some cases he did not hesitate to prescribe a -pilgrimage to the shrine of any saint for whom the patient may have had a -peculiar reverence; but in no instance in his experience did faith or -exorcism or hagiolatry heal an organic disease, set a dislocated joint or -restore an amputated limb. What Falstaff says of honour is equally true of -faith, it "hath no skill in surgery." - -But to return from this digression, Père Bougeant's theory of the -diabolical possession of pagans and unbaptized persons would provide for -comparatively few devils, and the gradual diffusion of Christianity would -constantly diminish the supply of human beings available as their proper -habitations. The ultimate conversion of the whole world and the custom of -baptizing infants as soon as they are born would, therefore, produce -serious domiciliary destitution and distress among the evil spirits and -set immense numbers of them hopelessly adrift as vagabonds, and thus -create an extremely undesirable diabolical proletariat. This difficulty is -avoided by assuming that the vast majority of devils are incarnate in the -billions of beasts of all kinds, which dwell upon the earth or fly in the -air or fill the waters of the rivers and the seas. This hypothesis, he -adds, "enables me to ascribe to the lower animals thought, knowledge, -feeling, and a spiritual principle or soul without running counter to the -truths of religion. Indeed, so far from being astonished at their -manifestations of intelligence, foresight, memory and reason, I am rather -surprised that they do not display these qualities in a higher degree, -since their soul is probably far more perfect than ours. Their defects -are, as I have discovered, owing to the fact that in brute as in us, the -mind works through material organs, and inasmuch as these organs are -grosser and less perfect in the lower animals than in man, it follows that -their exhibitions of intelligence, their thoughts and all their mental -operations must be less perfect; and, if these proud spirits are conscious -of their condition, how humiliating it must be for them to see themselves -thus embruted! Whether they are conscious of it or not, this deep -degradation is the first act of God's vengeance executed on his foes. It -is a foretaste of hell." - -Only by such an assumption, as our author proceeds to show, is it possible -to justify the ways of man to the lower animals and to reconcile his cruel -treatment of them with the goodness of an all-wise and all-powerful maker -and ruler of the universe. For this reason, he goes on to explain, the -Christian Church has never deemed it a duty to take the lower animals -under its protection or to inculcate ordinary natural kindness towards -them. Hence in countries, like Italy and Spain, where the influence of -Catholicism has been supreme for centuries, not only are wild birds and -beasts of chase relentlessly slaughtered and exterminated, but even useful -domestic animals, asses, sumpter-mules and pack-horses, are subjected to a -supererogation of suffering at the hands of ruthless man. As the pious -Parsi conscientiously comes up to the help of Ahuramazda against the -malevolent Angrô-mainyush by killing as many as possible of the creatures -which the latter has made, so the good Catholic becomes an efficient -co-worker with God by maltreating brutes and thus aiding the Almighty in -punishing the devils, of which they are the visible and bruisable forms. -Whatever pain is inflicted is felt, not by the physical organism, but by -the animated spirit. It is the embodied demon that really suffers, howling -in the beaten dog and squealing in the butchered pig. - -There are doubtless many persons of tender susceptibilities, who cannot -bear to think that the animals, whose daily companionship we enjoy, the -parrot we feed with sugar, the pretty pug we caress and the noble horse, -which ministers to our comfort and convenience, are nothing but devils -predestined to everlasting torture. But these purely sentimental -considerations are of no weight in the scale of reason. "What matters it," -replies the Jesuit Father, "whether it is a devil or another kind of -creature that is in our service or contributes to our amusement? For my -part, this idea pleases rather than repels me; and I recognize with -gratitude the beneficence of the Creator in having provided me with so -many little devils for my use and entertainment. If it be said that these -poor creatures, which we have learned to love and so fondly cherish, are -fore-ordained to eternal torments, I can only adore the decrees of God, -but do not hold myself responsible for the terrible sentence; I leave the -execution of the dread decision to the sovereign judge and continue to -live with my little devils, as I live pleasantly with a multitude of -persons, of whom, according to the teachings of our holy religion, the -great majority will be damned." The crafty disciple of Loyola, elusive of -disagreeable deductions, is content to accept the poodle in its phenomenal -form and to make the most of it, without troubling himself about "des -Pudels Kern." - -This doctrine, he thinks, is amply illustrated and confirmed by an appeal -to the consentient opinion of mankind or the argument from universal -belief, which has been so often and so effectively urged in proof of the -existence of God. If the maxim _universitas non delinquit_ has the same -validity in the province of philosophy as in that of law, then we are -justified in assuming that the whole human race cannot go wrong even in -purely metaphysical speculation and that unanimity in error is a -psychological impossibility. The criterion of truth, _quod semper, quod -ubique, quod ab omnibus_, by which the Roman hierarchy is willing to have -its claims to ecclesiastical catholicity and doctrinal orthodoxy tested, -is confined to Christendom in its application and does not consider the -views of persons outside of the body of believers. In the question under -discussion the argument is not subject to such limitations, but gathers -testimony from all races and religions, showing that there is not a -civilized nation or savage tribe on the face of the earth, which does not -regard or has not regarded the lower animals as embodiments of evil -spirits and sought to propitiate them. That "the devil is an ass" is a -truth so palpable that it has passed into a proverb. Baal-zebub means -fly-god; and the Christian Satan betrays his presence by the cloven foot -of the goat or the solid hoof of the horse. In folk-lore, which is the -_débris_ of exploded mythologies adrift on the stream of popular -tradition, cats, dogs, otters, apes, ravens, blackcocks, capercailzies, -rabbits, hedgehogs, wolves, were-wolves, foxes, polecats, swine, serpents, -toads, and countless varieties of insects, reptiles and vermin figure as -incarnations and instruments of the devil; and Mephistopheles reveals -himself to Faust as - - "Der Herr der Ratten und der Mäuse, - Der Fliegen, Frösche, Wanzen, Läuse." - - "The Lord of rats and of the mice, - Of flies and frogs, bed-bugs and lice." - -The worship of animals originates in the belief that they are embodiments -of devils, so that zoölatry, which holds such a prominent place in -primitive religions, is only a specific form of demonolatry. The objection -that a flea or a fly, a mite or a mosquito is too small a creature to -furnish fit lodgment for a demon, Father Bougeant dismisses with an -indulgent smile and disparaging shrug as implying a gross misconception of -the nature and properties of spirit, which is without extension or -dimension and therefore capable of animating the most diminutive particle -of organized matter. Large and little are purely relative terms. God, he -says, could have made man as small as the tiniest puceron without any -decrease of his spiritual powers. "It is, therefore, no more difficult to -believe that a devil may be incorporated in the delicate body of a gnat -than in the huge bulk of an elephant." The size of the physical -habitation, in which spirits take up their temporary abode, is a thing of -no consequence. In fact, devils in the forms of gnats and tiny insects -were thought to be especially dangerous, since one might swallow them -unawares and thus become diabolically possessed. The demon, liberated by -the death and dissolution of the insect, was supposed to make a tenement -of the unfortunate person's stomach, producing gripes and playing -ventriloquous tricks. Thus it is recorded in the _Dies Caniculuares_ of -Majolus (Meyer: _Der Aberglaube des Mittelalters_, p. 296-7) that a young -maiden in the Erzgebirge near Joachimsthal, in 1559, swallowed a fly, -while drinking beer. The evil spirit, incarnate in the fly, took -possession of the maiden and began to speak out of her, thus attracting -crowds of people, who put questions to the devil and tried to drive him -out by prayers, in which the unhappy girl sometimes joined, greatly to her -discomfort, since the devil waxed exceeding wroth and unruly and caused -her much suffering, whenever she uttered the name of Christ. Finally the -parish priest had her brought into the church, where he succeeded with -considerable difficulty in exorcising her. The stubborn demon resisted for -two years all efforts to cast him out; he even tried to compromise with -the girl, promising to be content with a finger nail or a single hair of -her head, but she declined all overtures, and he was at last expelled by -means of a potent conjuration, which lasted from midnight till midday. - -As the human soul is released by death, so the extinction of life in any -animal sets its devil free, who, instead of entering upon a spiritual -state of existence, goes into the egg or embryo of another animal and -resumes his penal bondage to the flesh. "Thus a devil, after having been a -cat or a goat, may pass, not by choice, but by constraint, into the embryo -of a bird, a fish or a butterfly. Happy are those who make a lucky hit and -become household pets, instead of beasts of burden or of slaughter. The -lottery of destiny bars them the right of voluntary choosing." The -doctrine of transmigration, continues our author, "which Pythagoras taught -of yore and some Indian sages hold to-day, is untenable in its application -to men and contrary to religion, but it fits admirably into the system -already set forth concerning the nature of beasts, and shocks neither our -faith nor our reason." Furthermore, it explains why "all species of -animals produce many more eggs or embryos than are necessary to propagate -their kind and to provide for a normal increase." Of the millions of -germs, of which "great creating nature" is so prolific, comparatively few -ever develop into living creatures; only those which are vivified by a -devil are evolved into complete organisms; the others perish. This seeming -superfluity and waste can be most easily reconciled with the careful -economy and wise frugality of nature by viewing it as a manifestation of -the bountiful and beneficent providence of God in preventing "any lack of -occupation or abode on the part of the devils," which are being constantly -disembodied and re-embodied. "This accounts for the prodigious clouds of -locusts and countless hosts of caterpillars, which suddenly desolate our -fields and gardens. The cause of these astonishing multiplications has -been sought in cold, heat, rain and wind, but the real reason is that, at -the time of their appearance, extraordinary quantities of animals have -died or their embryos been destroyed, so that the devils that animated -them were compelled to avail themselves at once of whatever species they -found most ready to receive them, which would naturally be the -superabundant eggs of insects." The more profoundly this subject is -investigated, he concludes, and the more light our observations and -researches throw upon it from all sides, the more probable does the -hypothesis here suggested in explanation of the puzzling phenomena of -animal life and intelligence appear. - -Father Bougeant calls his lucubration "a new system of philosophy"; but -this is not strictly true. He has only given a fuller and more facetious -exposition of a doctrine taught by many of the greatest lights of the -Catholic Church, among others by Thomas Aquinas, whose authority as a -thinker Pope Leo XIII. distinctly recognized and earnestly sought to -restore to its former prestige. Bougeant's ingenious dissertation has a -vein of irony or at least a strain of jocundity in it, approaching at -times so perilously near the fatal brink of persiflage, that one cannot -help surmising an intention to render the whole thing ridiculous in a -witty and underhand way eminently compatible with Jesuitical habits of -mind; but whether serious or satirical, his treatise is an excellent -example and illustration of the kind of dialectic hair-splitting and -syllogistic rubbish, which passed for reasoning in the early and middle -ages of the Christian era, and which the greatest scholars and acutest -intellects of those days fondly indulged in and seem to have been fully -satisfied with. Here, too, we come upon the metaphysical and theological -groundwork, upon which was reared by a strictly logical process a vast -superstructure of ecclesiastical excommunication and criminal prosecution -against bugs and beasts. He protests with never-tiring and needless -iteration his absolute devotion to the precepts of religion; indeed, like -the lady in the play, he "protests too much, methinks." In all humbleness -and submission he bows to the authority of the Church, and would not touch -the ark of the covenant even with the tip of his finger, but his easy -acquiescence has an air of perfunctoriness, and in his assenting lips -there lurks a secret, semi-sarcastic leer, which casts suspicion on his -words and looks like poking fun at the principles he professes and turning -them into raillery. - -Indeed, such covert derision would have been a suitable way of ridiculing -the gross popular superstition of his time, which saw a diabolical -incarnation in every unfamiliar form of animal life. During the latter -half of the sixteenth century a Swiss naturalist named Thurneysser, who -held the position of physician in ordinary to the Elector Johann Georg von -Brandenburg, kept some scorpions bottled in olive oil, which were feared -by the common people as terrible devils endowed with magic power -(_fürchterliche Zauberteufel_). Thurneysser presented also to Basel, his -native city, a large elk, which had been given to him by Prince Radziwil; -but the good Baselers looked upon the strange animal as a most dangerous -demon, and a pious old woman finally rid the town of the dreaded beast by -feeding it with an apple stuck full of broken needles. - -A distinguished Spanish theologian of the sixteenth century, Martin -Azpilcueta, commonly known as Dr. Navarre, refers, in his work on -excommunication, to a case in which anathemas were fulminated against -certain large sea-creatures called terones, which infested the waters of -Sorrento and destroyed the nets of the fishermen. He speaks of them as -"fish or cacodemons" (_pisces seu cacodemones_), and maintains that they -are subject to anathematization, not as fish, but only as devils. In his -Five Counsels and other tractates on this subject (Opera, Lyons, 1589; -reprinted at Venice, 1601-2, and at Cologne, 1616) he often takes issue -with Chassenée on minor points, but the French jurist and the Spanish -divine agree on the main question. - -In this connection it may be a matter of interest to add, that a German -neuropathologist of our own day, Herr von Bodelschwingh, ascribes epilepsy -to what he calls "demonic infection" due to the presence of the _bacillus -infernalis_ in the blood of those who are subject to this disease. The -microbe, to which the jocose scientist has been pleased to give this name, -differs from all other bacilli hitherto discovered in having two horns and -a tail, although the most powerful lenses have not yet revealed any traces -of a cloven foot. An additional indication of its infernal qualities is -the fact that it liquefies the gelatine, with which it comes in contact, -and turns it black, emitting at the same time a pestilential stench. -Doubtless this discovery will be hailed by theologians as a striking -confirmation of divine revelation by modern science, proving that our -forefathers were right in attributing the falling-sickness to diabolical -agencies. We know now that it was a legion of _bacilli infernales_ which -went out of the tomb-haunting man into the Gadarene swine and drove them -tumultuously over a precipice into the sea. In fact, who can tell what -microbes really are! Père Bougeant would certainly have regarded them as -nothing less than microscopic devils. - -The Savoyan jurist, Gaspard Bailly, in the second part of the disquisition -entitled _Traité des Monitoires_, already mentioned, treats "Of the -Excellence of Monitories" and discusses the main points touching the -criminal prosecution and punishment of insects. He begins by saying that -"one should not contemn monitories (a general term for anathemas, bans and -excommunications), seeing that they are matters of great importance, -inasmuch as they bear with them the deadliest sword, wielded by our holy -mother, the Church, to wit, the power of excommunication, which cutteth -the dry wood and the green, sparing neither the quick nor the dead, and -smiting not only rational beings, but turning its edge also against -irrational creatures; since it hath been shown at sundry times and in -divers places, that worms and insects, which were devouring the fruits of -the earth, have been excommunicated and, in obedience to the commands of -the Church, have withdrawn from the cultivated fields to the places -prescribed by the bishop who had been appointed to adjudge and to adjure -them." - -M. Bailly then cites numerous instances of this kind, in which a writer on -logic would find ample illustrations of the fallacy known as _post hoc, -ergo propter hoc_. Thus in the latter half of the fifteenth century, -during the reign of Charles the Bold, Duke of Burgundy, a plague of -locusts threatened the province of Mantua in Northern Italy with famine, -but were dispersed by excommunication. He quotes some florid lines from -the poet Altiat descriptive of these devastating swarms, which "came, -after so many other woes, under the leadership of Eurus (_i.e._ brought by -the east wind), more destructive than the hordes of Attila or the camps of -Corsicans, devouring the hay, the millet and the corn, and leaving only -vain wishes, where the hopes of August stood." Again in 1541, a cloud of -locusts fell upon Lombardy, and by destroying the crops, caused many -persons to perish with hunger. These insects "were as long as a man's -finger, with large heads and bellies filled with vileness; and when dead -they infected the air and gave forth a stench, which even carrion kites -and carnivorous beasts could not endure." Another instance is given, in -which swarms of four-winged insects came from Tartary, identified in the -popular mind with Tartarus, obscuring the sun in their flight and covering -the plains of Poland a cubit deep. In the year 1338, on St. Bartholomew's -Day, these creatures began to devastate the region round Botzen in the -Tyrol, consuming the crops and laying eggs and leaving a numerous progeny, -which seemed destined to continue the work of destruction indefinitely. A -prosecution was therefore instituted against them before the -ecclesiastical court at Kaltern, a large market-town about ten miles south -of Botzen, then as now famous for its wines, and the parish priest -instructed to proceed against them with the sentence of excommunication in -accordance with the verdict of the tribunal. This he did by the solemn -ceremony of "inch of candle," and anathematized them "in the name of the -Blessed Trinity, Father, Son and Holy Ghost." Owing to the sins of the -people and their remissness in the matter of tithes the devouring insects -resisted for a time the power of the Church, but finally disappeared. -Under the reign of Lotharius II., early in the twelfth century, enormous -quantities of locusts, "having six wings with two teeth harder than flint" -and "darkening the sky and whitening the air like a snowstorm," laid waste -the most fertile provinces of France. Many of them perished in the rivers -and the sea, and being washed ashore sent forth a putrescent smell and -produced a fearful pestilence. Precisely the same phenomenon, with like -disastrous results, is described by St. Augustine in the last book of _De -Civitate Dei_ as having occurred in Africa and caused the death of 800,000 -persons. - -In the majority of cases adduced there is no evidence that the Church -intervened at all with its fulminations, and, even when the anathema was -pronounced, the insects appear to have departed of their own free-will -after having eaten up every green thing and reduced the inhabitants to -the verge of starvation; and yet M. Bailly, supposed to be a man of -judicial mind, disciplined by study, accustomed to reason and to know what -sound reasoning is, goes on giving accounts of such scourges, as though -they proved in some mysterious way the effectiveness of ecclesiastical -excommunications and formed a cumulative argument in support of such -claims. - -The most important portion of M. Bailly's work is that in which he shows -how actions of this kind should be brought and conducted, with specimens -of plaints, pleas, replications, rejoinders, and decisions. First in order -comes the petition of the inhabitants seeking redress (_requeste des -habitans_), which is followed in regular succession by the declaration or -plea of the inhabitants (_plaidoyer des habitans_), the defensive -allegation or plea for the insects (_plaidoyer pour les insectes_), the -replication of the inhabitants (_réplique des habitans_), the rejoinder of -the defendant (_réplique du defendeur_), the conclusions of the bishop's -proctor (_conclusions du procureur episcopal_), and the sentence of the -ecclesiastical judge (_sentence du juge d'église_), which is solemnly -pronounced in Latin. The pleadings on both sides are delivered in French -and richly interlarded with classical allusions and Latin quotations, -being even more heavily weighted with the spoils of erudition than the set -speech of a member of the British Parliament. - -The following abridgment of the plea, in which the prosecuting attorney -sets forth the cause of complaint, is a fair specimen of the forensic -eloquence displayed on such occasions: - -"Gentlemen, these poor people on their knees and with tearful eyes, appeal -to your sense of justice, as the inhabitants of the islands Majorica and -Minorica formerly sent an embassy to Augustus Cæsar, praying him for a -cohort of soldiers to exterminate the rabbits, which were burrowing in -their fields and consuming their crops. In the power of excommunication -you have a weapon more effective than any wielded by that emperor to save -these poor suppliants from impending famine produced by the ravages of -little beasts, which spare neither the corn nor the vines, ravages like -those of the boar that laid waste the environs of Calydon, as related by -Homer in the first book of the _Iliad_, or those of the foxes sent by -Themis to Thebes, which destroyed the fruits of the earth and the cattle -and assailed even the husbandmen themselves. You know how great are the -evils which famine brings with it, and you have too much kindness and -compassion to permit my clients to be involved in such distress, thus -constraining them to perpetrate cruel and unlawful deeds; _nec enim -rationem patitur, nec ulla aequitate mitigatur, nec prece ulla flectitur -esuriens populus_: for a starving people is not amenable to reason, nor -tempered by equity, nor moved by any prayer. Witness the mothers, of whom -it is recorded in the Fourth Book of the Kings, that they ate their own -children, the one saying to the other: 'Give thy son that we may eat him -to-day, and we will eat my son tomorrow.'" The advocate then discourses at -length of the horrors of hunger and its disastrous effects upon the -individual and the community, lugging in what Milton calls a "horse-load -of citations" from Arianus Marcellinus, Ovid and other Latin prosaists and -poets, introduces an utterly irrelevant allusion to Joshua and the crafty -Gibeonites, and concludes as follows: "The full reports received as the -result of an examination of the fields, made at your command, suffice for -your information concerning the damage done by these animals. It remains, -therefore, after complying with the usual forms, only to adjudicate upon -the case in accordance with the facts stated in the Petition of the -Plaintiffs, which is right and reasonable, and, to this effect, to enjoin -these animals from continuing their devastations, ordering them to quit -the aforesaid fields and to withdraw to the place assigned them, -pronouncing the necessary anathemas and execrations prescribed by our Holy -Mother, the Church, for which your petitioners do ever pray." - -It is doubtful whether any speaking for Buncombe in the halls of Congress -or any spouting of an ignorant bumpkin in the moot-court of an American -law-school ever produced such a rhetorical hotchpotch of "matter and -impertinency mixed" as the earnest plea, of which the above is a brief -abstract. - -Rather more to the point, but equally overburdened with legal lore and -literary pedantry, is the rejoinder of the counsel for the insects: - -"Gentlemen, inasmuch as you have chosen me to defend these little beasts -(_bestioles_), I shall, an it please you, endeavour to right them and to -show that the manner of proceeding against them is invalid and void. I -confess that I am greatly astonished at the treatment they have been -subjected to and at the charges brought against them, as though they had -committed some crime. Thus information has been procured touching the -damage said to have been done by them; they have been summoned to appear -before this court to answer for their conduct, and, since they are -notoriously dumb, the judge, wishing that they should not suffer wrong on -account of this defect, has appointed an advocate to speak in their behalf -and to set forth in conformity with right and justice the reasons, which -they themselves are unable to allege. - -"Since you have permitted me to appear in defence of these poor animals, I -will state, in the first place, that the summons served on them is null -and void, having been issued against beasts, which cannot and ought not to -be cited before this judgment seat, inasmuch as such a procedure implies -that the parties summoned are endowed with reason and volition and are -therefore capable of committing crime. That this is not the case with -these creatures is clear from the paragraph _Si quadrupes_, etc., in the -first book of the Pandects, where we find these words: _Nec enim potest -animal injuriam fecisse, quod sensu caret_. - -"The second ground, on which I base the defence of my clients, is that no -one can be judicially summoned without cause, and whoever has had such a -summons served renders himself liable to the penalty prescribed by the -statute _De poen. tem. litig._ As regards these animals there is no _causa -justa litigandi_; they are not bound in any manner, _non tenentur ex -contractu_, being incompetent to make contracts or to enter into any -compact or covenant whatsoever, _neque ex quasi contractu_, _neque ex -stipulatione_, _neque ex pacto_, and still less _ex delicto seu quasi_, -can there be any question of a delict or any semblance thereof, since, as -has just been shown, the rational faculties essential to the capability of -committing criminal actions are wanting. - -"Furthermore, it is illicit to do that which is nugatory and of non-effect -(_qui ne porte coup_); in this respect justice is like nature, which, as -the philosopher affirms, does nothing _mal à propos_ or in vain: _Deus -enim et Natura nihil operantur frustra_. Now I leave it to you to decide -whether anything could be more futile than to summon these irrational -creatures, which can neither speak for themselves, nor appoint proxies to -defend their cause; still less are they able to present memorials stating -grounds of their justification. If then, as I have shown, the summons, -which is the basis of all judicial action, is null and void, the -proceedings dependent upon it will not be able to stand: _cum enim -principalis causa non consistat, neque ea quae consequuntur locum -habent_." - -The counsel for the defence rests his argument, of which the extract just -given may suffice as a sample, upon the irrationality and consequent -irresponsibility of his clients. For this reason he maintains that the -judge cannot appoint a procurator to represent them, and cites legal -authorities to show that the incompetency of the principal implies the -incompetency of the proxy, in conformity with the maxim: _quod directe -fieri prohibetur, per indirectum concedi non debet_. In like manner the -invalidity of the summons bars any charge of contempt of court and -condemnation for contumacy. Furthermore, the very nature of -excommunication is such that it cannot be pronounced against them, since -it is defined as _extra ecclesiam positio, vel è qualibet communione, vel -quolibet legitimo actu separatio_. But these animals cannot be expelled -from the Church, because they are not members of it and do not fall under -its jurisdiction, as the apostle Paul says: "Ye judge them that are -within and not them also that are without." _Excommunicatio afficit -animam, non corpus, nisi per quandam consequentiam, cujus medicina est._ -The animal soul, not being immortal, cannot be affected by such sentence, -which involves the loss of eternal salvation (_quae vergit in dispendium -aeternae salutis_). - -A still more important consideration is that these insects are only -exercising an innate right conferred upon them at their creation, when God -expressly gave them "every green herb for meat," a right which cannot be -curtailed or abrogated, simply because it may be offensive to man. In -support of this view he quotes passages from Cicero's treatise _De -Officiis_, the Epistle of Jude and the works of Thomas Aquinas. Finally, -he maintains that his clients are agents of the Almighty sent to punish us -for our sins, and to hurl anathemas against them would be to fight against -God (_s'en prendre à Dieu_), who has said: "I will send wild beasts among -you, which shall destroy you and your cattle and make you few in number." -That all flesh has corrupted its way upon the earth, he thinks is as true -now as before the deluge, and cites about a dozen lines from the -_Metamorphoses_ of Ovid in confirmation of this fact. In conclusion he -demands the acquittal of the defendants and their exemption from all -further prosecution. - -The prosecuting attorney in his replication answers these objections in -regular order, showing, in the first place, that, while the law may not -punish an irrational creature for a crime already committed, it may -intervene, as in the case of an insane person, to prevent the commission -of a crime by putting the madman in a strait-jacket or throwing him into -prison. He elucidates this principle by a rather far-fetched illustration -from the legal enactments concerning betrothal and breach of promise of -marriage. "It follows then inferentially that the aforesaid animals can be -properly summoned to appear and that the summons is valid, inasmuch as -this is done in order to prevent them from causing damage henceforth -(_d'ores en avant_) and only incidentally to punish them for injuries -already inflicted." - -"To affirm that such animals cannot be anathematized and excommunicated is -to doubt the authority conferred by God upon his dear spouse, the Church, -whom he has made the sovereign of the whole world, having, in the words of -the Psalmist, put all things under her feet, all sheep and oxen, the -beasts of the field, the fowl of the air, the fish of the sea and -whatsoever passeth through the paths of the seas. Guided by the Holy -Spirit she does nothing unwisely; and if there is anything in which she -should show forth her power it is in protecting and preserving the most -perfect work of her heavenly husband, to wit, man, who was made in the -divine image and likeness." The orator then dilates on the grandeur and -glory of man and interlards his harangue with quotations from sacred and -profane writers, Moses, Paul, Pliny, Ovid, Silius Italicus and Pico di -Mirandola, and declares that nothing could be more absurd than to deprive -such a being of the fruits of the earth for the sake of "vile and paltry -vermin." In reply to the statement of Thomas Aquinas, quoted by the -counsel for the defence, that it is futile to curse animals as such, the -plaintiffs' advocate says that they are not viewed merely as animals, but -as creatures doing harm to man by eating and wasting the products of the -soil designed for human sustenance; in other words he ascribes to them a -certain diabolical character. "But why dwell upon this point, since -besides the instances recorded in Holy Writ, in which God curses inanimate -things and irrational creatures, we have an infinite number of examples of -holy men, who have excommunicated noxious animals. It will suffice to -mention one familiar to us all and constantly before our eyes in the town -of Aix, where St. Hugon, Bishop of Grenoble, excommunicated the serpents, -which infested the warm baths and killed many of the inhabitants by biting -them. Now it is well known, that if the serpents in that place or in the -immediate vicinity bite any one, the bite is no longer fatal. The venom of -the reptile was stayed and annulled by virtue of the excommunication, so -that no hurt ensues from the bite, although the bite of the same kind of -serpent outside of the region affected by the ban, is followed by death." - -That serpents and other poisonous reptiles could be deprived of their -venom by enchantment and thus rendered harmless is in accord with the -teachings of the Bible. Thus we read in Ecclesiastes (x. 11): "Surely the -serpent will bite without enchantment," _i.e._ unless it be enchanted and -its bite disenvenomed. A curious superstition concerning the adder is -referred to in the Psalms (lviii. 4, 5), where the wicked are said to be -"like the deaf adder that stoppeth her ear; which will not hearken to the -voice of charmers, charming never so wisely." The Lord is also represented -by Jeremiah (viii. 17) as threatening to "send serpents, cockatrices, -among you, which will not be charmed, and they shall bite you." It does -not seem to have occurred to the prosecutor that the defendants might be -locusts, which would not be excommunicated. - -The objection that God has sent these insects as a scourge, and that to -anathematize them would be to fight against him, is met by saying that to -have recourse to the offices of the Church is an act of religion, which -does not resist, but humbly recognizes the divine will and makes use of -the means appointed for averting the divine wrath and securing the divine -favour. - -After the advocates had finished their pleadings, the case was summed up -by the episcopal procurator substantially as follows: - -"The arguments offered by the counsel for the defence against the -proceedings instituted by the inhabitants as complainants are worthy of -careful consideration and deserve to be examined soberly and maturely, -because the bolt of excommunication should not be hurled recklessly and at -random (_à la volée_), being a weapon of such peculiar energy and activity -that, if it fails to strike the object against which it is hurled, it -returns to smite him, who hurled it." [This notion that an anathema is a -dangerous missile to him who hurls it unlawfully or for an unjust purpose, -retroacting like an Australian boomerang, survives in the homely proverb: -"Curses, like chickens, come home to roost."] The bishop's proctor reviews -the speeches of the lawyers, but seems to have his brains somewhat muddled -by them. "It is truly a deep sea," he says, "in which it is impossible to -touch bottom. We cannot tell why God has sent these animals to devour the -fruits of the earth; this is for us a sealed book (_lettres closes_)." He -suggests it may be "because the people turn a deaf ear to the poor begging -at their doors," and goes off into a long eulogy on the beauty of charity, -with an anthology of extracts from various writers in praise of -alms-giving, among which is one from Eusebius descriptive of hell as a -cold region, where the wailing and gnashing of teeth are attributed to -the torments of eternal frost instead of everlasting fire (_liberaberis ab -illo frigore, in quo erit fletus et stridor dentium_). Again, the plague -of insects may be due to irreverence shown in the churches, which, he -declares, have been changed from the house of God into houses of -assignation. On this point he quotes from Tertullian, Augustine, and Numa -Pompilius, and concludes by recommending that sentence of excommunication -be pronounced upon the insects, and that the prayers and penances, -customary in such cases, be imposed upon the inhabitants. - -After this discourse, which reads more like a homily from the pulpit than -a plea at the bar and in the mouth of the bishop's proctor is simply an -_oratio pro domo_, the official gave judgment in favour of the plaintiffs. -The sentence, which was pronounced in Latin befitting the dignity and -solemnity of the occasion, condemned the defendants to vacate the premises -within six days on pain of anathema. - -The official begins by stating the case as that of "The People _versus_ -Locusts," declaring that the guilt of the accused has been clearly proved -"by the testimony of worthy witnesses and, as it were, by public rumour," -and inasmuch as the people have humbled themselves before God and -supplicated the Church to succour them in their distress, it is not -fitting to refuse them help and solace. "Walking in the footsteps of the -fathers, sitting on the judgment-seat, having the fear of God before our -eyes and confiding in his mercy, relying on the counsel of experts, we -pronounce and publish our sentence as follows: - -"In the name and by virtue of God, the omnipotent, Father, Son and Holy -Spirit, and of Mary, the most blessed Mother of our Lord Jesus Christ, and -by the authority of the holy apostles Peter and Paul, as well as by that -which has made us a functionary in this case, we admonish by these -presents the aforesaid locusts and grasshoppers and other animals by -whatsoever name they may be called, under pain of malediction and anathema -to depart from the vineyards and fields of this district within six days -from the publication of this sentence and to do no further damage there or -elsewhere." If, on the expiration of this period, the animals have refused -to obey this injunction, then they are to be anathematized and accursed, -and the inhabitants of all classes are to beseech "Almighty God, the -dispenser of all good gifts and the dispeller of all evils," to deliver -them from so great a calamity, not forgetting to join with devout -supplications the performance of all good works and especially "the -payment of tithes without fraud according to the approved custom of the -parish, and to abstain from blasphemies and such other sins as are of a -public and particularly offensive character." (_Vide_ Appendix B.) - -It is doubtful whether one could find in the ponderous tomes of scholastic -divinity anything surpassing in comical _non sequiturs_ and sheer nonsense -the forensic eloquence of eminent lawyers as transmitted to us in the -records of legal proceedings of this kind. Although the counsel for the -defendants, as we have seen, ventured to question the propriety and -validity of such prosecutions, his scepticism does not seem to have been -taken seriously, but was evidently smiled at as the trick of a pettifogger -bound to use every artifice to clear his clients. In the writings of -mediæval jurisprudents the right and fitness of inflicting judicial -punishment upon animals appear to have been generally admitted. Thus Guy -Pape, in his _Decisions of the Parliament of Grenoble_ (Qu. 238), raises -the query, whether a brute beast, if it commit a crime, as pigs sometimes -do in devouring children, ought to suffer death, and answers the question -unhesitatingly in the affirmative: "_si animal brutum delinquat, sicut -quandoque faciunt porci qui comedunt pueros, an debeat mori? Dico quod -sic._" Jean Duret, in his elaborate Treatise on Pains and Penalties -(_Traicté des Peines et des Amendes_, p. 250; cf. _Thémis Jurisconsulte_, -VIII. p. 57), takes the same view, declaring that "if beasts not only -wound, but kill and eat any person, as experience has shown to happen -frequently in cases of little children being eaten by pigs, they should -pay the forfeit of their lives and be condemned to be hanged and -strangled, in order to efface the memory of the enormity of the deed." The -distinguished Belgian jurist, Jodocus Damhouder, discusses this question -in his _Rerum Criminalium Praxis_ (cap. CXLII.), and holds that the beast -is punishable, if it commits the crime through natural malice, and not -through the instigation of others, but that the owner can redeem it by -paying for the damage done; nevertheless he is not permitted to keep -ferocious or malicious beasts and let them run at large, so as to be a -constant peril to the community. Occasionally a more enlightened jurist -had the common-sense and courage to protest against such perversions and -travesties of justice. Thus Pierre Ayrault, _lieutenant-criminel au siége -présidial d'Angers_, published at Angers, in 1591, a small quarto -entitled: _Des Procez faicts au Cadaver, aux Cendres, à la Mémoire, aux -Bestes brutes, aux Choses inanimées et aux Contumax_, in which he argued -that corpses, the ashes and the memory of the dead, brute beasts and -inanimate things are not legal persons (_legales homines_) and therefore -do not come within the jurisdiction of a court. Curiously enough a case -somewhat analogous to those discussed by Pierre Ayrault was adjudicated -upon only a few years ago. A Frenchman bequeathed his property to his own -corpse, in behalf of which his entire estate was to be administered, the -income to be expended for the preservation of his mortal remains and the -adornment of the magnificent mausoleum in which they were sepulchred. His -heirs-at-law contested the will, which was declared null and void by the -court on the ground that "a subject deprived of individuality or of civil -personality" could not inherit. The same principle would apply to the -infliction of penalties upon such subjects. The only kind of legacy that -will cause a man's memory to be cherished is the form of bequest which -makes the public weal his legatee. The Chinese still hold to the barbarous -custom of bringing corpses to trial and passing sentence upon them. On the -6th of August, 1888, the cadaver of a salt-smuggler, who was wounded in -the capture and died in prison, was brought before the criminal court in -Shanghai and condemned to be beheaded. This sentence was carried out by -the proper officers on the place of execution outside of the west gate of -the city. - -Felix Hemmerlein, better known as Malleolus, a distinguished doctor of -canon law and proto-martyr of religious reform in Switzerland, states in -his _Tractatus de Exorcismis_, that in the fourteenth century the peasants -of the Electorate of Mayence brought a complaint against some Spanish -flies, which were accordingly cited to appear at a specified time and -answer for their conduct; but "in consideration of their small size and -the fact that they had not yet reached their majority," the judge -appointed for them a curator, who "defended them with great dignity"; and, -although he was unable to prevent the banishment of his wards, he obtained -for them the use of a piece of land, to which they were permitted -peaceably to retire. How they were induced to go into this insect -reservation and to remain there we are not informed. The Church, as -already stated, claimed to possess the power of effecting the desired -migration by means of her ban. If the insects disappeared, she received -full credit for accomplishing it; if not, the failure was due to the sins -of the people; in either case the prestige of the Church was preserved and -her authority left unimpaired. - -In 1519, the commune of Stelvio, in Western Tyrol, instituted criminal -proceedings against the moles or field-mice,[3] which damaged the crops -"by burrowing and throwing up the earth, so that neither grass nor green -thing could grow." But "in order that the said mice may be able to show -cause for their conduct by pleading their exigencies and distress," a -procurator, Hans Grinebner by name, was charged with their defence, "to -the end that they may have nothing to complain of in these proceedings." -Schwarz Mining was the prosecuting attorney, and a long list of witnesses -is given, who testified that the serious injury done by these creatures -rendered it quite impossible for tenants to pay their rents. The counsel -for the defendants urged in favour of his clients the many benefits which -they conferred upon the community, and especially upon the agricultural -class by destroying noxious insects and larvæ and by stirring up and -enriching the soil, and concluded by expressing the hope that, if they -should be sentenced to depart, some other suitable place of abode might be -assigned to them. He demanded, furthermore, that they should be provided -with a safe conduct securing them against harm or annoyance from dog, cat -or other foe. The judge recognized the reasonableness of the latter -request, in its application to the weaker and more defenceless of the -culprits, and mitigated the sentence of perpetual banishment by ordering -that "a free safe-conduct and an additional respite of fourteen days be -granted to all those which are with young and to such as are yet in their -infancy; but on the expiration of this reprieve each and every must be -gone, irrespective of age or previous condition of pregnancy." (_Vide_ -Appendix C.) - -An old Swiss chronicler named Schilling gives a full account of the -prosecution and anathematization of a species of vermin called inger, -which seems to have been a coleopterous insect of the genus Brychus and -very destructive to the crops. The case occurred in 1478 and the trial was -conducted before the Bishop of Lausanne by the authority and under the -jurisdiction of Berne. The first document recorded is a long and earnest -declaration and admonition delivered from the pulpit by a Bernese -parish-priest, Bernhard Schmid, who begins by stating that his "dearly -beloved" are doubtless aware of the serious injury done by the inger and -of the suffering which they have caused. The Leutpriester, as he is -termed, gives a brief history of the matter and of the measures taken to -procure relief. The mayor and common council of Berne were besought in -their wisdom to devise some means of staying the plague, and after much -earnest deliberation they held counsel with the Bishop of Lausanne, who -"with fatherly feeling took to heart so great affliction and harm" and by -an episcopal mandate enjoined the inger from committing further -depredations. After exhorting the people to entreat God by "a common -prayer from house to house" to remove the scourge, he proceeds to warn and -threaten the vermin in the following manner: "Thou irrational and -imperfect creature, the inger, called imperfect because there was none of -thy species in Noah's ark at the time of the great bane and ruin of the -deluge, thou art now come in numerous bands and hast done immense damage -in the ground and above the ground to the perceptible diminution of food -for men and animals; and to the end that such things may cease, my -gracious Lord and Bishop of Lausanne has commanded me in his name to -admonish you to withdraw and to abstain; therefore by his command and in -his name and also by virtue of the high and holy trinity and through the -merits of the Redeemer of mankind, our Saviour Jesus Christ, and in virtue -of and obedience to the Holy Church, I do command and admonish you, each -and all, to depart within the next six days from all places where you have -secretly or openly done or might still do damage, also to depart from all -fields, meadows, gardens, pastures, trees, herbs, and spots, where things -nutritious to men and to beasts spring up and grow, and to betake -yourselves to the spots and places, where you and your bands shall not be -able to do any harm secretly or openly to the fruits and aliments -nourishing to men and beasts. In case, however, you do not heed this -admonition or obey this command, and think you have some reason for not -complying with them, I admonish, notify and summon you in virtue of and -obedience to the Holy Church to appear on the sixth day after this -execution at precisely one o'clock after midday at Wifflisburg, there to -justify yourselves or to answer for your conduct through your advocate -before His Grace the Bishop of Lausanne or his vicar and deputy. Thereupon -my Lord of Lausanne or his deputy will proceed against you according to -the rules of justice with curses and other exorcisms, as is proper in such -cases in accordance with legal form and established practice." The priest -then exhorts his "dear children" devoutly to beg and to pray on their -knees with Paternosters and Ave Marias to the praise and honour of the -high and holy trinity, and to invoke and crave the divine mercy and help -in order that the inger may be driven away. (_Vide_ Appendix D.) - -There is no further record of proceedings at this time, and it is highly -probable that the detection of some technical error rendered it necessary -to postpone the case, since this pettifogger's trick was almost always -resorted to and proved generally successful in procuring an adjournment. -At any rate either this or a precisely similar trial occurred in the -following year. Early in May 1479, the mayor and common council of Berne -sent copies of the monitorium and citation issued by the Bishop of -Lausanne to their representative for distribution among the priests of the -afflicted parishes, in order that it might be promulgated from their -respective pulpits and thus brought to the knowledge of the delinquents. -About a week later, on May 15, the same authorities sent also a letter to -the Bishop of Lausanne asking for new instructions in the matter, as they -were not certain how they should proceed, urging that immediate steps -should be taken, as the further delay would be "utterly intolerable." This -impatience would seem to imply that the anathema had been hanging fire for -some time and that the prosecution was identical with that of the -preceding year. - -The appointed term having elapsed and the inger still persisting in their -obduracy, the mayor and common council of Berne issued the following -document conferring plenipotentiary power of attorney on Thüring Fricker -to prosecute the case: "We, the mayor, council and commune of the city of -Berne, to all those of the bishopric of Lausanne, who see, read, or hear -this letter. We make known that after mature deliberation we have -appointed, chosen and deputed and by virtue of the present letter do -appoint, choose and depute the excellent Thüring Fricker, doctor of the -liberal arts and of laws, our now chancellor, to be our legal delegate and -agent and that of our commune, as well as of all the lands and places of -the bishopric of Lausanne, which are directly or indirectly subject and -appurtenant to us and of which a complete list is herein contained. And -indeed he has assumed this general and special attorneyship, whereof the -one shall not be prejudicial to the other, in the case which we have -undertaken and prosecute and have determined to prosecute before the court -of the right reverend in Christ Benedict de Montferrand, Bishop of -Lausanne, Count and our most worthy Superior, against the noxious host of -the inger (_brucorum_), which creeping secretly in the earth devastate the -fields, meadows and all kinds of grain, whereby with grievous wrong they -do detriment to the ever-living God, to whom the tithes belong, and to -men, who are nourished therewith and owe obedience to him. In this cause -he shall act in our stead, and in the name of all of us collectively and -severally shall plead, demur, reply, prove by witnesses, hear judgment or -judgments, appoint other defenders and in general and specially do each -and every thing which the importance of the cause may demand and which we -ourselves in case of our presence would be able to do. We solemnly promise -in good faith that all and the whole of what may be transacted, performed, -provided, pledged, and ordained in this cause by our aforesaid attorney or -by the proxy appointed by him shall be firmly and gratefully observed by -us, with the express renunciation of each and every thing that might -either by right or actually, in any wise, either wholly or partially -impair, weaken or assail our ordainment, conclusion and determination, -also over against any reservation of right, which permits a general -renunciation, even if no special reservation has preceded, with the -exclusion of every fraud and every deceit. In corroboration and -confirmation of the aforesaid we ratify this letter with the warranty of -our seal. Given on the twenty-second of May 1479." - -The trial began a couple of days later and was conducted with less "of the -law's delay" than usual, inasmuch as it ended on the twenty-ninth day of -the same month. The defender of the insects was a certain Jean Perrodet of -Freiburg, who according to all accounts was a very inefficient advocate -and does not appear to have contested the case with the ability and energy -which the interests of his clients required. The sentence of the court -with the appended anathema of the bishop was as follows: "Ye accursed -uncleanness of the inger, which shall not be called animals nor mentioned -as such, ye have been heretofore by virtue of the appeal and admonition of -our Lord of Lausanne enjoined to withdraw from all fields, grounds and -estates of the bishopric of Lausanne, or within the next six days to -appear at Lausanne, through your proctor, to set forth and to hear the -cause of your procedure, and to act with just judgment either for or -against you, pursuant to the said citation. Thereupon our gracious Lords -of Berne solicited by their mandate such a day in court at Lausanne, and -there before the tribunal renewed their plaint in their name and in that -of all the provinces of the said bishopric, and your reply thereto through -your proctor has been fully heard, and the legal terms have been justly -observed by both parties, and a lawful decision pronounced word for word -in this wise: - -"We, Benedict of Montferrand, Bishop of Lausanne, etc., having heard the -entreaty of the high and mighty lords of Berne against the inger and the -ineffectual and rejectable answer of the latter, and having thereupon -fortified ourselves with the Holy Cross, and having before our eyes the -fear of God, from whom alone all just judgments proceed, and being advised -in this cause by a council of men learned in the law, do therefore -acknowledge and avow in this our writing that the appeal against the -detestable vermin and inger, which are harmful to herbs, vines, meadows, -grain and other fruits, is valid, and that they be exorcised in the person -of Jean Perrodet, their defender. In conformity therewith we charge and -burden them with our curse, and command them to be obedient and -anathematize them in the name of the Father, the Son and the Holy Ghost, -that they turn away from all fields, grounds, enclosures, seeds, fruits -and produce, and depart. By virtue of the same sentence I declare and -affirm that you are banned and exorcised, and through the power of -Almighty God shall be called accursed and shall daily decrease -whithersoever you may go, to the end that of you nothing shall remain save -for the use and profit of man. _Adiungendo aliquid in devotionem populi._" -The phrase _das si beswärt werden in die person Johannis Perrodeti irs -beschirmers_ does not imply that the vermin or the devils, of which they -were supposed to be incarnations, were to be conjured into him, but refer -to him merely as their proctor and legal representative. The results of -the prosecution, which had been awaited with intense and anxious interest -by the people, were received with great joy, and the Bernese government -ordered a full report of the proceedings to be made. The ecclesiastical -anathema, however, proved to be _brutum fulmen_; nothing more came of it, -says Schilling, "owing to our sins." Another chronicler adds that God -permitted the inger to remain as a plague and a punishment until the -people repented of their wickedness and gave evidence of their love and -gratitude to Him, namely, by giving to the Church tithes of what the -insects had not destroyed. - -The Swiss priest in his malediction declares that the inger were not in -Noah's ark and even denies that they are animals properly speaking, -stigmatizing them as living corruption, products of spontaneous generation -perhaps, or more probably creations of the devil. This position was -assumed in order to escape the gross impropriety and glaring incongruity -of having the Church of God curse the creatures which God had made and -pronounced very good, and afterwards took pains to preserve from -destruction by the deluge. This difficulty, always a serious one, was, as -we have seen, one of the chief points urged by the counsel for the defence -in favour of his clients. - -Malleolus gives the following formula for banning serpents and expelling -them from human habitations, inculcating incidentally the iniquity of -perjury and judicial injustice: "By virtue of this ban and conjuration I -command you to depart from this house and cause it to be as hateful and -intolerable to you, as the man, who knowingly bears false witness or -pronounces an unjust sentence, is to God." Sometimes the exorcism was in -the form of a prayer, as, for example, in that used for the purgation and -disinfection of springs and water-courses: "O Lord Jesus, thou who didst -bless the river Jordan and wast baptized in it and hast purified and -cleansed it to the end that it might be a healing element for the -redemption from sin, bless, sanctify and purify this water, so that there -may be left in it nothing noxious, nothing pestiferous or contagious, -nothing pernicious, but that everything in it may be pure and immaculate, -in order that we may use whatever is created in it for our welfare and to -thy glory, through our Lord Jesus Christ. Amen." - -In a Latin protocol of legal proceedings in Crollolanza's _Storia del -Contado di Chiavenna_ it is recorded that on June 26, 1659, Capt. J. B. -Pestalozzi came, in behalf of the communes of Chiavenna, Mese, Gordona, -Prada and Samolico, before the commissioner Hartmann Planta and brought -complaint against certain caterpillars on account of the devastations -committed by them, demanding that these hurtful creatures should be -summoned by the proper sheriff to appear in court on June 28 at a -specified hour in order to have a curator and defender appointed, who -should answer for them to the plaintiffs. A second document, dated June -28, 1659, and signed by the notary Battista Visconti, certifies that the -said summons had been duly issued and five copies of the same been posted -each on a tree in the five forests in the territory of the aforesaid five -communes. A third document of the same date required the advocate of the -accused, Cesare de Peverello, to appear before the court on the following -Tuesday, July 1, in behalf of his recusant clients, who were charged with -trespassing upon the fields, gardens and orchards and doing great damage -therein, instead of remaining in their habitat, the forest. The -prosecutors required that they should seek their food in wild and wooded -places and cease from ravaging cultivated grounds. A fourth document -contains an account of the trial; the pleadings of the respective parties, -so far as they are preserved, do not differ essentially from those already -quoted. In the fifth and final document the court recognizes the right of -the caterpillars to life, liberty, and the pursuit of happiness, provided -the exercise of this right "does not destroy or impair the happiness of -man, to whom all lower animals are subject." Accordingly a definite place -of abode is to be assigned to them and various places are proposed. The -protocol is incomplete, so that we are left in ignorance of the ultimate -decision. The whole is written in execrable Latin quite worthy of the -subject. - -More than half-a-century later the Franciscan friars of the cloister of -St. Anthony in the province of Piedade no Maranhão, Brazil, were greatly -annoyed by termites, which devoured their food, destroyed their furniture, -and even threatened to undermine the walls of the monastery. Application -was made to the bishop for an act of interdiction and excommunication, and -the accused were summoned to appear before an ecclesiastical tribunal to -give account of their conduct. The lawyer appointed to defend them urged -the usual plea about their being God's creatures and therefore entitled to -sustenance, and made a good point in the form of an _argumentum ad -monachum_ by praising the industry of his clients, the white ants, and -declaring them to be in this respect far superior to their prosecutors, -the Gray Friars. He also maintained that the termites were not guilty of -criminal aggression, but were justified in appropriating the fruits of the -fields by the right derived from priority of possession, inasmuch as they -had occupied the land long before the monks came and encroached upon their -domain. The trial lasted for some time and called forth remarkable -displays of legal learning and forensic eloquence, with numerous citations -of sacred and profane authorities on both sides, and ended in a -compromise, by the terms of which the plaintiffs were obliged to provide a -suitable reservation for the defendants, who were commanded to go thither -and to remain henceforth within the prescribed limits. In the chronicles -of the cloister it is recorded, under date of Jan. 1713, that no sooner -was the order of the prelatic judge promulgated by being read officially -before the hills of the termites than they all came out and marched in -columns to the place assigned. The monkish annalist regards this prompt -obedience as conclusive proof that the Almighty endorsed the decision of -the court. [Cited by Emile Angel on the authority of Manoel Bernardes' -_Nova Floresta, ou Sylva de varios apophthegmas e ditos sentencios -espirituaes e moraes_, etc. Vol. V., Lisboá, 1747.] - -About the middle of the sixteenth century the inhabitants of several -villages in Aargau were greatly annoyed by swarms of gadflies and -petitioned the Bishop of Constance for relief. In the episcopal rescript, -written and signed by the vidame Georg Winterstetter, the people are -enjoined to abstain from dancing on Sundays and feast days, from all forms -of libidinousness, gambling with cards or dice and other frivolities. -These injunctions are followed by prayer and the usual formulas of -conjuration and exorcism. The original document was written in Latin and -preserved in the archives of Baden in Switzerland, but is now lost. In -1566 the Landamman of Unterwalden, Johannes Wirz, took a German -translation of it home with him to be used in case of need against the -"vergifteten Würmer," and deposited it in the archives of Obwalden, where -it still remains. It was published in 1898 by Dr. Merz. - -In Protestant communities, the priest as exorcist has been superseded, to -a considerable extent, by the professional conjurer, who in some portions -of Europe is still employed to save crops from devouring insects and -similar plagues. A curious instance of this kind is recorded in Görres' -_Historisch-Politische Blätter_ for 1845 (Heft VII. p. 516). A Protestant -gentleman in Westphalia, whose garden was devastated by worms, after -having tried divers vermicidal remedies in vain, resolved to have recourse -to a conjurer. The wizard came and walked about among the vegetables, -touching them with a wand and muttering enchantments. Some workmen, who -were repairing the roof of a stable near by, made fun of this hocus-pocus -and began to throw bits of lime at the conjurer. He requested them to -desist, and finally said: "If you don't leave me in peace, I shall send -all the worms up on the roof." This threat only excited the hilarity of -the scoffers, who continued to ridicule and disturb him in his -incantations. Thereupon he went to the nearest hedge, cut a number of -twigs, each about a finger in length, and placed them against the wall of -the stable. Soon the vermin began to abandon the plants and, crawling in -countless numbers over the twigs and up the wall, took complete possession -of the roof. In less than an hour the men were obliged to stop working and -stood in the court below covered with confusion and cabbage-worms. - -The writer, who relates this strange incident, fully believes that it -actually occurred, and ascribes it to "the force of human faith and the -magnetic power of a firm will over nature." This, too, is the theory held -by Paracelsus, who maintained that the effectiveness of a curse lay in the -energy of the will, by which the wish, so to speak, concretes into a deed, -just as anger directs the arm and actualizes itself in a blow. By "fervent -desire" merely, without any physical effort or aggressive act, he deemed -it possible to wound a man's body or to pierce it through as with a sword. -He also held that brutes are more easily exorcised or accursed than men, -"for the spirit of man resists more than that of the brute." Similar -notions were entertained nearly a century later by Jacob Boehme, who -defines magic as "doing in the spirit of the will," an idea which finds -more recent and more scientific expression in Schopenhauer's doctrine of -"the objectivation of the will." Indeed, Schopenhauer's postulate of the -will as the sole energy and actuality in the universe is only the -philosophic statement of an assumption, upon which magicians and -medicine-men, enchanters, exorcists and anathematizers have acted more or -less in all ages. We have a striking illustration of the workings of some -such mysterious, quasi-hyperphysical force in hypnotism, the reality of -which it is no longer possible to deny, however wonderful and -incomprehensible its manifestations may appear. - -It is natural that a religion of individual initiative and personal -responsibility, like Protestantism, should put less confidence in theurgic -machinery and formularies of ex-cathedral execration than a religion like -Catholicism, in which man's spiritual concerns are entrusted to a -hierarchical corporation to be managed according to traditional and -infallible methods. This tendency crops out in a decree published at -Dresden, in 1559, by "Augustus Duke and Elector," wherein he commends the -"Christian zeal of the worthy and pious parson, Daniel Greysser," for -having "put under ban the sparrows, on account of their unceasing and -extremely vexatious chatterings and scandalous unchastity during the -sermon, to the hindrance of God's word and of Christian devotion." But the -Saxon parson, unlike the Bishop of Trier, did not expect that his ban -would cause the offending birds to avoid the church or to fall dead on -entering it. He relied less on the directly coercive or withering action -of the curse than on the human agencies, which he might thereby set at -work for the accomplishment of his purpose. By his proscription he put the -culprits out of the pale of public sympathy and protection and gave them -over as a prey to the spoiler, who was persuaded that he was doing a pious -work by exterminating them. It was solemnly enjoined upon the hunter and -the fowler to lie in wait for the anathematized sparrows with guns and -with snares (_durch mancherlei visirliche und listige Wege_); and the -Elector issued his decree in order to enforce this duty on all good -Christians. (See Appendix E.) - -A faded and somewhat droll survival of ecclesiastical excommunication and -exorcism is the custom, still prevailing in European countries and some -portions of the United States, of serving a writ of ejectment on rats or -simply sending them a friendly letter of advice in order to induce them to -quit any house, in which their presence is deemed undesirable. Lest the -rats should overlook and thus fail to read the epistle, it is rubbed with -grease, so as to attract their attention, rolled up and thrust into their -holes. Mr. William Wells Newell, in a paper on "Conjuring Rats," printed -in _The Journal of American Folk-Lore_ (Jan.-March, 1892), gives a -specimen of such a letter, dated, "Maine, Oct. 31, 1888," and addressed in -business style to "Messrs. Rats and Co." The writer begins by expressing -his deep interest in the welfare of said rats as well as his fears lest -they should find their winter quarters in No. 1, Seaview Street, -uncomfortable and poorly supplied with suitable food, since it is only a -summer residence and is also about to undergo repairs. He then suggests -that they migrate to No. 6, Incubator Street, where they "can live snug -and happy" in a splendid cellar well stored with vegetables of all kinds -and can pass easily through a shed leading to a barn containing much -grain. He concludes by stating that he will do them no harm if they heed -his advice, otherwise he shall be forced to use "Rough on Rats." This -threat of resorting to rat poison in case of the refusal to accept his -kind counsel is all that remains of the once formidable anathema of the -Church. - -In Scotland, when these domestic rodents became too troublesome, people of -the lower classes are wont to post the following notice on the walls of -their houses: - - "Ratton and mouse, - Lea' the puir woman's house, - Gang awa' owre by to 'e mill, - And there ane and a' ye'll get your fill." - -In order to make the conjuration effective some particular abode must be -assigned to them; it is not sufficient to bid them begone, but they are to -be told to go to a definite place. The fact that they are usually sent -across a river or brook may indicate a lingering tradition of their -demoniacal character, since, according to a widespread popular -superstition, a water-course is a barrier to hobgoblins and evil spirits: - - "A running stream they dare na cross." - -In this case the rats, as imps of Satan, having reached their destination, -would find it impossible to return. - -It was in Ireland, the native realm of bulls and like incongruities, that -conjuring or "rhyming" rats seems to have been most common, if we may -judge from the manner in which it is alluded to by the Elizabethan poets. -Thus in _As you Like It_ Rosalind says in reference to Orlando's verses: -"I was never so be-rhymed since Pythagoras' time, that I was an Irish rat, -which I can hardly remember." Randolph declares: - - "My poets - Shall with a satire, steep'd in gall and vinegar, - Rhime 'em to death, as they do rats in Ireland." - -Ben Jonson is still more specific: - - "Rhime 'em to death, as they do Irish rats, - In drumming tunes." - -From this reference to the mode of conjuring it appears that the repeating -of the rhymes was accompanied with the beating of a drum, as is still the -usage in France. From the very earliest times a peculiar magical potency -has been ascribed to words woven into rhythmic form. The fascination which -metrical expression, even as a mere jingle and jargon, still retains for -the youth of the individual was yet far more strongly felt in the youth of -the race. The simple song was intoned as a spell and the rude chant -mumbled as a charm. - -In France the conjuration of field-mice bears a more distinctly religious -stamp. On the first Sunday in Lent, the so-called Feast of the Torches -(_la Fête des Brandons ou des Bures_), the peasants wander in all -directions through the fields and orchards with lighted torches of twisted -straw, uttering the following incantation, which not only threatens to -burn the whiskers of obdurate mice, but also hints at the wine-bibbing -propensities of the curate: - - "Sortez, sortez d'ici, mulots! - Ou je vais vous bruler les crocs! - Quittez, quittez ces blés! - Allez, vous trouverez - Dans la cave du curé - Plus à boire qu'à manger." - -The form of imprecation varies in different provinces, but usually -includes some threat of breaking the bones or burning the beards of the -refractory rodents, in case they refuse to quit the close, as in the -following summons: - - "Taupes et mulots, - Sors de mon clos, - Ou je te casse les os; - Barbassione! Si tu viens dans non clos, - Je te brûle la barbe jusqu'aux os." - -The utterance of these words is emphasized by loud and discordant noises -of cat-calls, tin horns, and similar instruments of "Callithumpian" music. - -Gregory, who was Bishop of Tours in the latter half of the sixth century, -states in his _History of the Franks_ (VIII. 35) that bronze talismans -representing dormice and serpents were used in Paris to protect the city -against the ravages of these creatures; and when the town of Le Mans was -rebuilt after its destruction by fire in 1145, a toad with a gold chain -round its neck, was enclosed in a block of stone as a preservative against -venomous reptiles. (Le Corvasier: _Hist, des Évêques du Mans_, 1648, p. -441. Cf. Desnoyers: _Recherches_, etc., p. 7.) - -The use of the above-mentioned means of conjuration is unquestionably of -very ancient date. Thus in a treatise on agriculture entitled [Greek: ta -geôponika] 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 oeuvres_), 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 [Greek: epteinaria], a name -which would imply some sort of winged creature. It was "sighted like the -basilisk," and endowed also in other respects with the same fatal -qualities. - -In the case of a valuable animal, such as an ox or a horse, the severity -of retaliatory justice was often tempered by economical considerations and -the culprit confiscated, but not capitally punished. Thus as early as the -twelfth century it is expressly stated that "it is the law and custom in -Burgundy that if an ox or a horse commit one or several homicides, it -shall not be condemned to death, but shall be taken by the Seignior -within whose jurisdiction the deed was perpetrated or by his servitors and -be confiscated to him and shall be sold and appropriated to the profit of -the said Seignior; but if other beasts or Jews do it, they shall be hanged -by the hind feet" (Coustumes et Stilles de Bourgoigne, § 197 in Giraud: -_Essai sur l'Histoire du Droit Francais_, II. p. 302; quoted by Amira). It -was a cruel irony of the law that conferred upon pigs and Jews a perfect -equality of rights by sending them both to the scaffold. - -Animals were put on a par with old crones in bearing their full share of -persecution during the witchcraft delusion. Pigs suffered most in this -respect, since they were assumed to be peculiarly attractive to devils, -and therefore particularly liable to diabolical possession, as is evident -from the legion that went out of the lunatic and were permitted, at their -own request, to enter into the Gadarene herd of swine. But Beelzebub did -not disdain to become incarnate in all sorts of creatures, such as cats, -dogs of high and low degree, wolves, night-birds and indeed in any beast, -especially if it chanced to be black. Goats, it is well known, were not a -too stinking habitation for him, and even to dwell in skunks he did not -despise. The perpetual smell of burning sulphur in his subterranean abode -may render him proof against any less suffocating form of stench. The -Bible represents Satan as going about as a roaring lion; and according to -the highest ecclesiastical authorities he has appeared visibly as a raven, -a porcupine, a toad and a gnat. Indeed, there is hardly a living creature -in which he has not deigned to disport himself from a blue-bottle to a -bishop, to say nothing of his "appearing invisibly at times" (_aliquando -invisibiliter apparens_), if we may believe what the learned polyhistor -Tritheim tells of his apparitions. As all animals were considered -embodiments of devils, it was perfectly logical and consistent that the -Prince of Darkness should reveal himself to mortal ken as a mongrel -epitome of many beasts--snake, cat, dog, pig, ape, buck and horse each -contributing some characteristic part to his incarnation. - -It was during the latter half of the seventeenth century, when, as we have -seen, criminal prosecutions of animals were still quite frequent and the -penalties inflicted extremely cruel, that Racine caricatured them in Les -Plaideurs, where a dog is tried for stealing and eating a capon. Dandin -solemnly takes his seat as judge, and declares his determination to "close -his eyes to bribes and his ears to brigue." Petit Jean prosecutes and -L'Intime appears for the defence. Both address the court in florid and -high-flown rhetoric and display rare erudition in quoting Aristotle, -Pausanias and other ancient as well as modern authorities. The accused is -condemned to the galleys. Thereupon the counsel for the defendant brings -in a litter of puppies, _pauvres enfants qu'on veut rendre orphelins_, and -appeals to the compassion and implores the clemency of the judge. Dandin's -feelings are touched, for he, too, is a father; as a public officer, also, -he is moved by the economical consideration of the expense to the state of -keeping the offspring of the culprit in a foundling hospital, in case they -should be deprived of paternal support. To the contemporaries of Racine -the representation of a scene like this had a significance, which we fail -to appreciate. It strikes us as simply farcical and not very funny; to -them it was a mirror reflecting a characteristic feature of the time and -ridiculing a grave judicial abuse, as Cervantes, a century earlier, -burlesqued the institution of chivalry in the adventures of Don Quixote. -(See Appendix R.) - -_Lex talionis_ is the oldest kind of law and the most deeply rooted in -human nature. To the primitive man and the savage, tit for tat is an -ethical axiom, which it would be thought immoral as well as cowardly not -to put into practice. No principle is held more firmly or acted upon more -universally than that of literal and exact retributions in man's dealings -with his fellows--the iron rule of doing unto others the wrongs which -others have done unto you. Hebrew legislation demanded "life for life, eye -for eye, tooth for tooth, hand for hand, foot for foot, burning for -burning, wound for wound, stripe for stripe." An old Anglo-Saxon law made -this retaliatory principle of _membrum pro membro_ the penalty of all -crimes of personal violence, including rape; even a lascivious eye was to -be plucked out, in accordance with the doctrine that "whosoever looketh on -a woman to lust after her hath committed adultery with her already in his -heart." ["Corruptor puniatur in eo in quo deliquat: oculos igitur amittat, -propter aspectum decoris, quo virginem concupivit; amittat et testiculos, -qui calorem stupri induxerunt." Cf. Bracton, 147_b_; Reeves, I. 481.] This -was believed to be God's method of punishment, smiting with disease or -miraculously destroying the bodily organs, which were the instruments of -sin. Thus Stengelius (_De Judiciis Divinis_, II. 26, 27) records how a -thunderbolt was hurled by the divine hand in such a manner as to castrate -a lascivious priest: _impurus et saltator sacerdos fulmine castratus_. The -same sort of retributive justice was recognized by the Institutes of Manu, -which punished a thief by the amputation or mutilation of his fingers. - -In the covenant with Noah it was declared that human blood should be -required not only "at the hand of man," but also "at the hand of every -beast;" and it was subsequently enacted, in accordance with this -fundamental principle, that "if an ox gore a man or a woman that they die, -then the ox shall be surely stoned, and his flesh shall not be eaten." To -eat a creature which had become the peer of man in blood-guiltiness and in -judicial punishment, would savour of anthropophagy. This decision of -Jewish law-givers as to the use of the flesh of otherwise edible animals -condemned to death for crime has nearly always been followed. Thus when, -in 1553, several swine were executed for child-murder at Frankfort on the -Main, their carcasses, although doubtless as good pork as could be found -in the shambles, were thrown into the river. Usually, however, they were -buried under the gallows or in whatever spot was set apart for interring -the dead bodies of human criminals. At Ghent, however, in 1578, after -judicial sentence of death had been pronounced on a cow, she was -slaughtered and her flesh sold as butcher's meat, half of the proceeds of -the sale being given as compensation to the injured party and the other -half to the city treasury for distribution among the poor; but her head -was struck off and stuck on a stake near the gallows, to indicate that she -had been capitally punished. The thrifty Flemings did not permit the moral -depravity to taint the material substance of the bovine culprit and impair -the excellence of the beef. - -On the other hand, the Law Faculty of the University of Leipsic decided -that a cow, which had pushed a woman and thereby caused her death at -Machern in Saxony, July 20, 1621, should be taken to a secluded and -barren place and there killed and buried "unflayed." In this case the -flesh of the homicidal animal was not to be eaten nor the hide converted -into leather. (_Vide_ Appendix S.) - -In this connection it may be interesting to mention a decision of the -Ecclesiastical Court (_geistlicher Convent_) of Berne, given in 1666 and -recorded in Türler's _Strafrechtliche Gutachten des geistlichen Konvents -der Stadt Bern_ (_Zeitschrift für schweiz._ _Strafrecht_, Bd. III., Heft -5. Quoted by Tobler). An insane man was tried for murder and the -prosecutor seems to have urged that the lack of moral responsibility did -not suffice to relieve the accused of legal responsibility and to free him -from punishment, citing as pertinent to the case the Mosaic law, which -inflicted the death penalty on an ox for the like offence. On this point -the court replied: "In the first place, that specifically Jewish law is -not binding upon other governments, and is not observed by them either as -regards oxen or horses. Again, even if the Jewish law should be really -applicable to all men, it could not be appealed to in the present case, -since it is not permissible to draw an inference _a bove ad hominem_. -Inasmuch as no law is given to the ox, it cannot violate any, in other -words, cannot sin and therefore cannot be punished. On the other hand, -death is a severe penalty for man. Nevertheless if God commanded that the -'goring ox' should be killed, this was done in order to excite aversion to -the deed, to prevent the animal from injuring others, and in this manner -to punish the owner of the beast. This fact, however, proves nothing -touching the case now before us; for, although God enacted a law for the -ox, he did not enact any for the insane man, and the distinction between -the goring ox and the maniac must be observed. An ox is created for man's -sake, and can therefore be killed for his sake; and in doing this there is -no question of right or wrong as regards the ox; on the other hand, it is -not permissible to kill a man, unless he has deserved death as a -punishment." The remarkable points in this decision are, first, the -abrogation of a biblical enactment by an ecclesiastical court of the -seventeenth century, and, secondly, the discussion of a criminal act from -a psychiatrical point of view and the admission of extenuating and -exculpating circumstances derived from this source. - -The Koran holds every beast and fowl accountable for injuries done to each -other, but reserves their punishment for the life to come. Among the -Kukis, if a man falls from a tree and is killed, it is the sacred duty of -the next of kin to fell the tree, and cut it up and scatter the chips -abroad. The spirit of the tree was supposed to have caused the mishap, and -the blood of the slain was not thought to be thoroughly avenged until the -offending object had been effaced from the earth. A survival of this -notion was the custom of burning heretics and flinging their ashes to the -four winds or casting them upon rivers running into the sea. The laws of -Drakôn and Erechtheus required weapons and all other objects, by which a -person had lost his life, to be publicly condemned and thrown beyond the -Athenian boundaries. This sentence of banishment, then regarded as one of -the severest that could be inflicted, was pronounced upon a sword, which -had killed a priest, the wielder of the same being unknown; and also upon -a bust of the elegiac poet Theognis, which had fallen on a man and caused -his death. Even in cases which, one would think, might be regarded as -justifiable homicide in self-defence, no such ground of exculpation seems -to have been admitted. Thus the statue erected by the Athenians in honour -of the famous athlete, Nikôn of Thasos, was assailed by his envious foes -and pushed from its pedestal. In falling it crushed one of its assailants, -and was therefore brought before the proper tribunal and sentenced to be -cast into the sea. Judicial proceedings of this kind were called [Greek: -apsychôn dikai] (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 [Greek: apsychon] should be applied only to an -inanimate object and not to the brute, which was more correctly called -[Greek: aphônon] (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 ([Greek: agronomoi]), 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 ([Greek: exorizein], 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 ([Greek: keraunos]) -or other missile ([Greek: belos]) 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 ([Greek: to ophlon]) 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 ([Greek: nomos]) 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 -[Greek: miasma] 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 -homoepathically against theft. The persistency of this superstition is -shown by the fact that a farmer's hired man named Sier and belonging to -the hamlet of Heumaden, was tried at Weiden in Bavaria, May 23, 1894, and -convicted of having exhumed the body of a newly buried child in the -churchyard of Moosbach and taken out one of its eyes, which he supposed -would render him invisible to mortal sight like the famous _tarnkappe_ of -old German mythology, and thus enable him to indulge with impunity his -propensity to steal. For this sacrilege he was sentenced to one year and -two months' imprisonment and to the loss of civil rights for three years. - -In some of the Scottish islands it is the custom to beach a boat, from -which a fisherman had been drowned, cursing it for its misdeed and -letting it dry and fall to pieces in the sun. The boat is guilty of -manslaughter and must no longer be permitted to sail the sea with innocent -craft. Scotch law does not seem to have recognized deodand in the strictly -etymological sense of the term, but only escheat, in other words, the -confiscated objects were not necessarily applied to pious purposes--_pro -anima regis et omnium fidelium defunctorum_--but were simply forfeited to -the king or to the state. This form of confiscation never prevailed so -generally in Central and Eastern, as in Western Europe. Some German -communities and territorial sovereigns introduced it from France, but so -modified the practical application of the principle as to award to the -injured party the greater portion, in Lüneburg, for example, two-thirds of -the value of the confiscated animal or object. (_Vide_ Kraut's _Stadtrecht -von Lüneburg_, No. XCVII. Cited by Von Amira, p. 594.) - -Blackstone's theories of the origin of deodands are exceedingly vague and -unsatisfactory. Evidently the learned author of the _Commentaries_ could -give no consistent explanation of these vestiges of ancient criminal -legislation. His statement that they were intended to punish the owner of -the forfeited property for his negligence, and his further assertion that -they were "designed, in the blind days of popery, as an expiation for the -souls of such as were snatched away by sudden death," are equally -incorrect. In most cases the owner was perfectly innocent and very -frequently was himself the victim of the accident. He suffered only -incidentally from a penalty imposed for a wholly different purpose, just -as a slaveholder incurs loss when his human chattel commits murder and is -hanged for it. The primal object was to atone for the taking of life in -accordance with certain crude conceptions of retribution. Under -hierarchical governments the prominent idea was to appease the wrath of -God, who otherwise might visit mankind with famine and pestilence and -divers retaliatory scourges. For the same reason the property of a suicide -was deodand. Thus the wife and children of the deceased, who may be -supposed to have already suffered most from the fatal act, were subjected -to additional punishment for it by being robbed of their rightful -inheritance. Yet this was by no means the intention of the lawmakers, who -simply wished to prescribe an adequate atonement for a grievous offence, -and in seeking to accomplish this main purpose, ignored the effect of -their action upon the fortunes of the heirs or deemed it a matter of minor -consideration. - -Ancient legislators uniformly regarded a _felo de se_ as a criminal -against society and treated him as a kind of traitor. The man had enjoyed -the support and protection of the body-politic during his infancy and -youth, and, by taking his own life, he shook off the responsibilities and -shirked the duties devolving upon him as an adult member of the -commonwealth. This is why self-murder was called felony and as such -involved forfeiture of goods. Calchas would not permit the body of "the -mad Ajax," who died by his own hand, to be burned; and the Christian -Church of to-day refuses to bury in consecrated ground with religious -rites any person who deliberately cuts short the thread of his existence -and thus commits treason against the Most High. The Athenians -ignominiously lopped off the hand of a suicide and buried the guilty -instrument of his death, as an accursed thing, apart from the rest of the -interred or incremated body. In some communities all persons over sixty -years of age have been left free to kill themselves, if they wished to do -so. They had performed the duties of citizenship and of procreation and -were permitted to retire in this way, if they saw fit. In very ancient -times, the magistrates of Massalia (Marseilles, then a Greek colony) are -said to have kept on hand a supply of poison to be given to any citizen, -who, on due examination, was found to have good and sufficient reason for -taking his own life. Suicide was thus legalized and facilitated, and -thereby rendered honourable, and was perhaps found more convenient and -economical than to grant pensions or to support paupers. It was a summary -method of getting rid of those who had finished the struggle for existence -or failed in it, and in either case might be a burden to themselves or to -the state. On the other hand, when a suicidal mania seized upon the -maidens of Miletos, an Ionian city in Caria, and threatened to produce a -dearth of wives and mothers, the municipal authorities decreed that the -bodies of all such persons should be exposed naked in the market-place, in -order that virgin modesty and shame might overcome the desire of death, -and check a self-destructive passion extremely detrimental to the Milesian -commonwealth. - -It is true, as Blackstone asserts, that the Church claimed deodands as her -due and put the price of them into her own coffers; but this fact does not -explain their origin. They were an expression of the same feeling that led -the public authorities to fill up a well, in which a person had been -drowned, not as a precautionary measure, but as a solemn act of expiation; -or that condemned and confiscated a ship, which, by lurching, had thrown a -man overboard and caused his death. - -Deodands were not abolished in England until the reign of Queen Victoria. -With the exception of some vestiges of primitive legislation still -lingering in maritime law, they are, in modern codes, one of the latest -applications of a penal principle, which, in Athens, expatriated stocks -and stones, and in other countries of Europe excommunicated bugs and sent -beasts to the stake and to the gallows. - - - - -CHAPTER II - -MEDIÆVAL AND MODERN PENOLOGY - - -A striking and significant indication of the remarkable change that has -come over the spirit of legislation, and more especially of criminal -jurisprudence, in comparatively recent times, is the fact that whereas, a -few generations ago, lawgivers and courts of justice still continued to -treat brutes as men responsible for their misdeeds, and to punish them -capitally as malefactors, the tendency now-a-days is to regard men as -brutes, acting automatically or under an insane and irresistible impulse -to evil, and to plead this innate and constitutional proclivity, in -prosecution for murder, as an extenuating or even wholly exculpating -circumstance. Some persons even maintain, as we have already seen, that -such criminals are diabolically possessed and thus account for their -inveterate and otherwise incredible perversity on the theory held by the -highest authorities in the Middle Ages concerning the nature of noxious -animals. - -Mediæval jurists and judges did not stop to solve intricate problems of -psycho-pathology nor to sift the expert evidence of the psychiater. The -legal maxim: _Si duo faciunt idem non est idem_ (if two do the same thing, -it is not the same) was too fine a distinction for them, even when one of -the doers was a brute beast. The puzzling knots, which we seek painfully -to untie and often succeed only in hopelessly tangling, they boldly cut -with executioner's sword. They dealt directly with overt acts and -administered justice with a rude and retaliative hand, more accustomed and -better adapted to clinch a fist and strike a blow than to weigh motives -nicely in a balance, to measure gradations of culpability, or to detect -delicate differences in the psychical texture and spiritual qualities of -deeds. They put implicit faith in Jack Cade's prescription of "hempen -caudle" and "pap of hatchet" as radical remedies for all forms and degrees -of criminal alienation and murderous aberration of mind. Phlebotomy was -the catholicon of the physician and the craze of the jurist; blood-letting -was regarded as the only infallible cure for all the ills that afflict the -human and the social body. Doctors of physic and doctors of law vied with -each other in applying this panacea. The red-streaked pole of the -barber-surgeon and the reeking scaffold, symbols of venesection as a means -of promoting the physical and moral health of the community, were the -appropriate signs of medicine and jurisprudence. Hygeia and Justicia, -instead of being represented by graceful females feeding the emblematic -serpent of recuperation or holding with firm and even hand the well-poised -scales of equity, would have been more fitly typified by two enormous -leeches gorged with blood. - -Even the dead, who should have been hanged, but escaped their due -punishment, could not rest in their graves until the corpse had suffered -the proper legal penalty at the hands of the public executioner. Their -restless ghosts wandered about as vampires or other malicious spooks until -their crimes had been expiated by digging up their bodies and suspending -them from the gallows. Culprits, who died on the rack or in prison, were -brought to the scaffold as though they were still alive. In 1685, a -were-wolf, supposed to be the incarnation of a deceased burgomaster of -Ansbach, did much harm in the neighbourhood of that city, preying upon the -herds and even devouring women and children. With great difficulty the -ravenous beast was finally killed; its carcass was then clad in a tight -suit of flesh-coloured cere-cloth, resembling in tint the human skin, and -adorned with a chestnut brown wig and a long whitish beard; the snout of -the beast was cut off and a mask of the burgomaster's features substituted -for it, and the counterfeit presentment thus produced was hanged by order -of the court. The pelt of the strangely transmogrified wolf was stuffed -and preserved in the margrave's cabinet of curiosities as a memorial of -the marvellous event and as ocular proof of the existence of were-wolves. - -In Hungary and the Slavic countries of Eastern Europe the public execution -of vampires was formerly of frequent occurrence, and the superstition, -which gave rise to such proceedings, still prevails among the rural -population of those semi-civilized lands. In 1337, a herdsman near the -town of Cadan came forth from his grave every night, visiting the -villages, terrifying the inhabitants, conversing affably with some and -murdering others. Every person, with whom he associated, was doomed to die -within eight days and to wander as a vampire after death. In order to keep -him in his grave a stake was driven through his body, but he only laughed -at this clumsy attempt to impale a ghost, saying: "You have really -rendered me a great service by providing me with a staff, with which to -ward off the dogs when I go out to walk." At length it was decided to give -him over to two public executioners to be burned. We are informed that -when the fire began to take effect, "he drew up his feet, bellowed for a -while like a bull and hee-hawed like an ass, until one of the executioners -stabbed him in the side, so that the blood oozed out and the evil finally -ceased." - -Again in 1345, in the town of Lewin, a potter's wife, who was reputed to -be a witch, died and, owing to suspicions of her pact with Satan, was -refused burial in consecrated ground and dumped into a ditch like a dog. -The event proved that she was not a good Christian, for instead of -remaining quietly in her grave, such as it was, she roamed about in the -form of divers unclean beasts, causing much terror and slaying sundry -persons. Thereupon she was exhumed and it was found that she had chewed -and swallowed one half of her face-cloth, which, on being pulled out of -her throat, showed stains of blood. A stake was driven through her breast, -but this precautionary measure only made matters worse. She now walked -abroad with the stake in her hand and killed quite a number of people with -this formidable weapon. She was then taken up a second time and burned, -whereupon she ceased from troubling. The efficacy of this post-mortem -_auto da fé_ was accepted as conclusive proof that her neighbours had -neglected to perform their whole religious duty in not having burned her -when she was alive, and were thus punished for their remissness. - -Döpler cites also the case of Stephen Hübner of Trautenau, who wandered -about after death as a vampire, frightening and strangling several -individuals. By order of the court his body was disinterred and -decapitated under the gallows-tree. When his head was struck off, a stream -of blood spurted forth, although he had been already five months buried. -His remains were reduced to ashes and nothing more was heard of him. - -In 1573, the parliament of Dôle published a decree permitting the -inhabitants of the Franche Comté to pursue and kill a were-wolf or -loup-garou, which infested that province; "notwithstanding the existing -laws concerning the chase," the people were empowered to "assemble with -javelins, halberds, pikes, arquebuses and clubs to hunt and pursue the -said were-wolf in all places, where they could find it, and to take, bind -and kill it, without incurring any fine or other penalty." The hunt seems -to have been successful, if we may judge from the fact that the same -tribunal in the following year (1574) condemned to be burned a man named -Gilles Garnier, who ran on all fours in the forest and fields and devoured -little children "even on Friday." The poor lycanthrope, it appears, had as -slight respect for ecclesiastical fasts as the French pig already -mentioned, which was not restrained by any feeling of piety from eating -infants on a _jour maigre_. - -Henry VIII. of England summoned Thomas à Becket to appear before the Star -Chamber to answer for his crimes and then had him condemned as a traitor, -and his bones, that had been nearly four centuries in the tomb and -worshipped as holy relics by countless pilgrims, burned and scattered to -the winds. - -When Stephen VI. succeeded to the tiara in 896, one of his first acts was -to cause the body of his predecessor, Formosus, to be exhumed and brought -to trial on the charge of having unlawfully and sacrilegiously usurped -the papal dignity. A writ of summons was issued in due form and the corpse -of the octogenarian pope, which had lain already eight months in the -grave, was dug up, re-arrayed in full pontificals and seated on a throne -in the council-hall of St. Peter's, where a synod had been convened to -adjudicate upon the case. No legal formality was omitted in this strange -procedure and a deacon was appointed to defend the accused, although the -synodical jury was known to be packed and the verdict predetermined. -Formosus was found guilty and condemned to deposition. No sooner was the -sentence pronounced than the executioners thrust him from the throne, -stripped him of his pontifical robes and other ensigns of office, cut off -the three benedictory fingers of his right hand, dragged him by the feet -out of the judgment-hall and threw his body "as a pestilential thing" -(_uti quoddam mephiticum_) into the Tiber. Not until several months later, -after Stephen himself had been strangled in prison, were the mutilated and -putrefied remains of Formosus taken out of the water and restored to the -tomb. The Athenian Prytaneum, as we have already seen, was guilty of the -childishness of prosecuting inanimate objects, but it never violated the -sepulchre for the purpose of inflicting post-humous punishment on corpses. -The perpetration of this brutality was reserved for the Papal See. - -From the standpoint of ancient and mediæval jurisprudents the overt act -alone was assumed to constitute the crime; the mental condition of the -criminal was never or at least very seldom taken into consideration. It is -remarkable how long this crude and superficial conception of justice -prevailed, and how very recently even the first attempts have been made to -establish penal codes on a philosophic basis. The punishableness of an -offence is now generally recognized as depending solely upon the sanity -and rationality of the offender. Crime, morally and legally considered, -presupposes, not perfect, for such a thing does not exist, but normal -freedom of the will on the part of the agent. Where this element is -wanting, there is no culpability, whatever may have been the consequences -of the act. Modern criminal law looks primarily to the psychical origin of -the deed, and only secondarily to its physical effects; mediæval criminal -law ignored the origin altogether, and regarded exclusively the effects, -which it dealt with on the homoeopenal principle of _similia similibus -puniantur_, for the most part blindly and brutally applied. - -Mancini, Lombroso, Garofalo, Albrecht, Benedikt, Büchner, Moleschott, -Despine, Fouillée, Letourneau, Maudsley, Bruce Thompson, Nicholson, -Minzloff, Notovich and other European criminal lawyers, physiologists and -anthropologists have devoted themselves with peculiar zeal and rare -acuteness to the study and solution of obscure and perplexing problems of -psycho-pathological jurisprudence, and have drawn nice and often overnice -distinctions in determining degrees of personal responsibility. Judicial -procedure no longer stops with testimony establishing the bald facts in -the case, but admits also the evidence of the expert alienist in order to -ascertain to what extent the will of the accused was free or functionally -normal in its operation. Here it is not a question of raving madness or of -drivelling idiocy, perceptible to the coarsest understanding and the -crassest ignorance; but the slightest morbid disturbance, impairing the -full and healthy exercise of the mental faculties, must be examined and -estimated. If "privation of mind" and "irresistible force," says Zupetta, -are exculpatory, then "partial vitiation of mind" and "semi-irresistible -force" are entitled to the same or at least to proportional consideration. -There are states of being which are mutually contradictory and exclusive -and cannot co-exist, such as life and death. A partial state of life or -death is impossible; such expressions as half-alive and half-dead are -hyperbolical figures of speech used for purely rhetorical purposes; taken -literally, they are simply absurd. It is not so, however, with states of -mind. The intellect, whose soundness is the first condition of -accountability, may be perfectly clear, manifesting itself in all its -fulness and power, or it may be partially obscured. So, too, the will, -whose self-determination is the second condition of accountability, may -assert itself with complete freedom and untrammelled force, or it may act -under stress and with imperfect volition. Moral coercion, whether arising -from external influences, abnormities of the physical organism or defects -of the mental constitution, is not less real because it is not easy to -detect and may not be wholly irresistible. For this reason, it involves no -contradiction in terms and is not absurd to call an action half-conscious, -half-voluntary, or half-constrained. "Partial vitiation of mind" is a -state distinctly recognized in psychiatrical science. In like manner, -there is no essential incongruity in affirming that an impulse may be the -result of a "semi-irresistible force." But these mental conditions and -forces do not manifest themselves with equal obviousness and intensity in -all cases; sometimes they are scarcely appreciable; again they verge upon -"absolute privation of mind" and "wholly irresistible force;" and it is -the duty of the judge to adjust the penalty to the gradations of guilt as -determined by the greater or less freedom of the agent. - -The same process of reasoning would lead to the admission of -quasi-vitiations of mind and quasi-irresistible forces as grounds of -exculpation. Thus one might go on analyzing and refining away human -responsibility, and reducing all crime to resultants of mental -derangement, until every malefactor would come to be looked upon, not as a -culprit to be delivered over to the sharp stroke of the headsman or the -safe custody of the jailer, but as an unfortunate victim of morbid states -and uncontrollable impulses, to be consigned to the sympathetic care of -the psychiater. - -Italian anthropologists and jurisprudents have been foremost and gone -farthest, both theoretically and practically, in this reaction from -mediæval conceptions of crime and its proper punishment. This violent -recoil from extreme cruelty to excessive commiseration is due, in a great -measure, to the Italian temperament, to a peculiar gentleness and -impressionableness of character, which, combined with an instinctive -aversion to whatever shocks the senses and mars the pleasure of the -moment, are apt to degenerate into shallow sentimentality and sickly -sensibility, thereby enfeebling and perverting the moral sense and -distorting all ideas of right and justice. To minds thus constituted the -cool and deliberate condemnation of a human being to the gallows is an -atrocity, in comparison with which a fatal stab in the heat of passion or -under strong provocation seems a light and venial transgression. This -maudlin sympathy with the guilty living man, who is in danger of suffering -for his crime, to the entire forgetfulness of the innocent dead man, the -victim of his anger or cupidity, pervades all classes of society, and has -stimulated the ingenuity of lawyers and legislators to discover mitigating -moments and extenuating circumstances and other means of loosening and -enlarging the intricate meshes of the penal code so as to permit the -culprit to escape. To this end they eagerly seized upon the doctrine of -evolution and endeavoured to seek the origin of crime in hereditary -propensities, atavistic recurrences, physical degeneracies and other -organic fatalities, for which no one can be held personally responsible, -and constructed upon the basis of the most recent scientific researches a -penological system giving free scope and full gratification to this -pitying and palliating disposition. - -But, although the Italians have been pioneers in this movement, it has not -been confined to them; it extends to all civilized nations, and expresses -a general tendency of the age. Even the Germans, those leaders in theory -and laggards in practice, whose studies and speculations have illustrated -all forms and phases of judicial procedure, but who adhere so -conservatively to ancient methods and resist so stubbornly the tides of -reform in their own courts have yielded on this point. They no longer -regard insanity and idiocy as the only grounds of exemption from -punishment, but include in the same category "all morbid disturbances of -mental activity," and "all states of mind in which the free determination -of the will is not indeed wholly destroyed, but only partially impaired." -In order to realize the radical changes that have taken place in this -direction within a relatively recent period, it will suffice merely to -compare the present criminal code of the German Empire with the Austrian -code of 1803, the Bavarian code of 1813, and the Prussian code of 1851. It -must be remembered, too, that these changes have been effected under the -drift of public opinion in spite of the political preponderance of Prussia -and her strong bureaucratic influence, which has always been exerted in -favour of severe penalties, and shown slight consideration for individual -frailties and criminal idiosyncrasies in inflicting punishment. As the -stronghold of a stolid and supercilious squirearchy (Junkerthum) in -Germany, Prussia has stubbornly resisted to the last every reformatory -movement in civil and social, and especially in criminal legislation. - -A recent decision of the supreme court of the German Empire (pronounced in -the summer of 1894) seems to put a check upon this tendency by rejecting -the plea of "moral insanity" in the extenuation of crime. As a matter of -fact, however, the question whether such a state of mind as "moral -insanity" exists or can exist has not yet been settled; and so long as -psychiaters do not agree as to the actuality or possibility of this -anomalous mental condition, courts of justice may very properly refuse to -take it into consideration or to allow it to exert the slightest influence -upon their judgment in the infliction of judicial punishment. Moral -insanity, as usually defined, involves a disturbance of the moral -perceptions and a derangement of the emotional nature, without impairing -the distinctively intellectual faculties. The supposed victim of this -hypothetical form of madness is capable of thinking logically and often -shows remarkable astuteness in forming his plans and executing his -criminal purposes, but seems utterly destitute of the moral sense and of -all the finer feelings of humanity, performing the most atrocious deeds -without hesitation and remembering them without the slightest compunction. -In moral stolidity and the lack of susceptibility he is on a level with -the lowest savage. German psychiaters, on the whole, are inclined to -regard such persons, not as morally insane, but as morally degenerate and -depraved; and German jurists and judges are not disposed to admit such -vitiation of character as an extenuating circumstance, especially at a -time when criminals of this class are on the increase and are banded -together to overthrow civilized society and to introduce an era of anarchy -and barbarism. The decision of the German judicatory is therefore not -reactionary, but merely precautionary, and simply indicates a wise -determination to keep the administration of criminal law unencumbered by -theories, which science has not yet fully established and which at present -can only serve to paralyze the arm of retributive justice. - -Mediæval penal justice sought to inflict the greatest possible amount of -suffering on the offender and showed a diabolical fertility of invention -in devising new methods of torture even for the pettiest trespasses. The -monuments of this barbarity may now be seen in European museums in the -form of racks, thumbkins, interlarded hares, Pomeranian bonnets, Spanish -boots, scavenger's daughters, iron virgins and similar engines of cruelty. -Until quite recently an iron virgin, with its interior full of long and -sharp spikes, was exhibited in a subterranean passage at Nuremberg, on the -very spot where it is supposed to have once performed its horrible -functions; and in Munich this inhuman instrument of punishment was in -actual use as late as the beginning of the nineteenth century. The -criminal code of Maria Theresa, published in 1769, contained forty-five -large copperplate engravings, illustrating the various modes of torture -prescribed in the text for the purpose of extorting confession and -evidently designed to serve as object lessons for the instruction of the -tormentor and the intimidation of the accused. That Prussia was the first -country in Germany to abolish judicial torture was due, not to the -progressive spirit of the nation or of its tribunals, but solely to the -superior enlightenment and energy of Frederic the Great, who effected this -reform arbitrarily and against the will of jurists and judges by -cabinet-orders issued in 1740 and 1745. Crimes which women are under -peculiar temptation to commit, were punished with extraordinary severity. -Thus the infanticide was buried alive, a small tube communicating with the -outer air being placed in her mouth in order to prolong her life and her -agony. A case of this kind is recorded in the proceedings of the -"Malefiz-Gericht" or criminal court of Ensisheim in Alsatia under the date -of February 3, 1570. In 1401, an apprentice, who stole from his master -five pfennigs (then as now the smallest coin of Germany and worth about -the fifth of a cent), was condemned to have both his ears cut off. -Incredible barbarities of this kind were practised by some of the best and -noblest men of that age. Thus Cardinal Carlo Borromeo, who was pre-eminent -among his contemporaries for the purity of his life and the benevolence of -his character, did not hesitate to condemn Fra Tommaso di Mileto, a -Franciscan monk, to be walled up alive, because he entertained heretical -notions concerning the sinfulness of eating meat on Friday, and expressed -doubts touching the worship of images, indulgences, the supreme and -infallible authority of the pope, and the real presence in the eucharist. -This cruel sentence, a striking illustration of the words of Lucretius, - - "Tantum religio potuit suadere malorum," - -was pronounced December 16, 1564, as follows: "I condemn you to be walled -up in a place enclosed by four walls, where, with anguish of heart and -abundance of tears, you shall bewail your sins and grievous offences -committed against the majesty of God, and the holy mother Church and the -religion of St. Francis, the founder of your order." A bishop, who should -impose such a punishment now-a-days, would be very properly declared -insane and divested of his office. - -Much ridicule has been cast upon the so-called "Blue Laws" of Connecticut -on account of the narrowness and pettiness of their prevailing spirit. -From our present point of view they are absurd and in many respects -atrocious, but compared with the penal codes of that time they mark a -great advance in human legislation. They reduced the number of crimes, -then punishable in England by death, from two hundred and twenty-three to -fourteen. In the mother-country, as late as the seventeenth century, -counterfeiters and issuers of false coin were condemned to be boiled to -death in oil by slow degrees. The culprit was suspended over the cauldron -and gradually let down into it, first boiling the feet, then the legs and -so on, until all the flesh was separated from the bones and the body -reduced to a skeleton. The Puritans of New England, relentless as they -were in their dealings with sectaries, were never so ruthless as this; nor -is it probable that they would have inflicted capital punishment upon -their own "stubborn and rebellious sons," or upon persons who "worship -any other God but the Lord God," had it not been for precedents recorded -in laws enacted by a semi-civilized people thousands of years ago and -supposed to have been dictated by divine wisdom. They failed to perceive -the incongruity of attempting to rear a democratic commonwealth on -theocratic foundations and made the fatal mistake of planning their -structure after what they regarded as the perfect model of the Jewish -Zion. - -If we compare these barbarities with the law recently enacted by the -legislature of the state of New York, whereby capital punishment is to be -inflicted as quickly and painlessly as possible by means of electricity, -we shall be able to appreciate the immense difference between the mediæval -and the modern spirit in the conception and execution of penal justice. - -A point of practical importance, which the criminal anthropologist has to -consider is the relation of moral to penal responsibility. If there is no -freedom of the will and the commission of crime is the necessary result of -physiological idiosyncrasies, hereditary predispositions, brachycephalous, -dolichocephalous or microcephalous peculiarities, anomalies of cerebral -convolution, or other anatomical asymmetries, over which the individual -has no control and by which his destiny is determined, then he is -certainly not morally responsible for his conduct. But is he on this -account to be exempt from punishment? The vast majority of criminalists -answer this question unhesitatingly in the negative, declaring that penal -legislation is independent of metaphysical opinion, and that punishment is -proper and imperative so far as it is essential to the protection and -preservation of society. If the infliction of the penalties depriving a -man of his freedom or his life is found to secure these ends, it is the -duty of the tribunals established for the administration of justice to -impose them without troubling themselves about the mental condition of the -culprit or stopping to discuss problems which belong to the province of -the psychiater. Legal tribunals are not offices in which candidates for -the insane asylum are examined or certificates of admission to -reformatories issued, but are organized as a terror to evil-doers in the -general interests of society, and all their decisions should have this -object in view. If a madman is not hanged for murder, it is solely because -such a procedure would exert no deterring influence upon other madmen; -society protects itself, in cases of this kind, by depriving the dangerous -individual of his liberty and thus preventing him from doing harm; but it -has no right to inflict upon him wanton and superfluous suffering. Even if -it should be deemed desirable to kill him, the method of his removal -should be such as to cause the least possible pain and publicity. Here, -too, the welfare of society is the determinative factor. - -This doctrine reduces confirmed criminals to the condition of ferocious -beasts and venomous reptiles, and logically demands that they should be -eliminated for precisely the same reason that noxious animals are -exterminated, although neither the human nor the animal creatures are to -blame for the perniciousness of their inborn proclivities and natural -instincts. In the eyes of Courcelle-Seneuil a prison is a "kind of -menagerie"; Naquet, the French chemist and senator, goes still farther, -declaring that men are no more culpable for being criminal than vitriol is -for being corrosive, and adding that it is our own fault if we put this -stuff into our tea and are poisoned by it. The same writer maintains that -"there is no more demerit in being perverse than in being cross-eyed or -hump-backed." In a recent lecture on criminal jurisprudence and biology -Professor Benedikt cites the case of a Moravian robber and murderer, whose -brain was found on dissection to resemble that of a beast of prey and who -was therefore, in the opinion of the eminent Viennese authority, no more -responsible for his bloody deeds than is a lion or a tiger for its -ravages. The corollary to this anatomical demonstration is that one should -treat such a man as a lion or a tiger and shoot him on the spot. Atavistic -relapses, defective cerebral development and other abnormities -undoubtedly occur in criminals, whose acts may be traced, in some degree, -to these physical imperfections and therefore be pathologically stimulated -and partially necessitated by them. On the other hand, there are thousands -of persons with equally small and unsymmetrical craniums, who do not -commit crime, but remain respectable, safe, and useful members of society. - -Lombroso discovers in habitual malefactors a tendency to tattoo their -bodies; but this kind of cuticular ornamentation indicates merely a low -development of the æsthetic sense, a barbarous conception of the beautiful -or what would be called bad taste, and has not the slightest genetic or -symptomatic connection with crime and the proclivity to perpetrate it. As -a means of embellishing the exterior man it may be rude and unrefined, but -after all it is only skin-deep, and does not extend to the moral -character. Honest people of the lower classes take pleasure in disfiguring -themselves in this way, and soldiers and sailors, who are very far from -furnishing the largest percentage of criminals, are especially addicted to -it, simply because they find ample leisure in the barracks and the -forecastle to undergo this slow and painful process of what they deem -adornment. According to Lombroso criminals have as a rule thick heads of -hair and thin beards; but as the majority of them are comparatively young, -these phenomena are by no means remarkable. He has also found that the -hair of such persons is usually black or dark chestnut; had his -investigations been carried on in Norway and Sweden instead of in Italy, -he would have certainly come to the conclusion that flaxen hair is an -index of a criminal character. - -It would be difficult to deny the existence of a constitutionally criminal -class, a persistently perverse element, which is the born foe of all law -and order, at war with every form of social and political organization and -whose permanent attitude of mind is that of the Irishman, who, on landing -in New York, inquired: "Have ye a government here?" and, on receiving an -affirmative answer, replied, "Then I'm agin' it." Criminal anthropologists -have been especially earnest in their endeavours to define this pernicious -type and to determine the physiological and physiognomical features, which -characterize and constitute it. This line of research is unquestionably in -the right direction, but as a reaction against barren scholastic -speculations and brutal penal codes has been carried to excess by -enthusiastic specialists and led to broad generalizations and hasty -deductions from insufficient data. Taine's definition of man as "an animal -of a higher species, that produces poems and systems of philosophy, as -silkworms spin cocoons and bees secrete honeycomb," applies with equal -force to the vicious side of human nature. Criminal propensities, as well -as creative powers, are the resultants of race, temperament, climate, -food, organism, environment and other pre-natal and post-natal influences -and agencies, to which the individual did not voluntarily subject himself -and from which he cannot escape. The acts, therefore, which he performs, -whether good or evil, are as independent of his will as the colour of his -hair or the shape of his nose; for while they are apparently volitional -impulses, the will itself, from which they seem to proceed, is determined -by forces as fixed and free from his control as are those which render him -blue-eyed or snub-nosed. - -The penological application of this philosophical principle has given rise -to numerous theories concerning the nature and origin of crime. Lombroso -and his disciples, as we have already intimated, attribute it to atavism -or the survival in the individual of the animal instincts and low morals -of the aboriginal barbarian. The criminal is simply a savage let loose in -a civilized community and ignoring the ethical conceptions developed by -ages of culture and performing actions that would have seemed perfectly -proper and praiseworthy in the eyes of our pre-historic ancestors. The -hero of the Palæolithic age is the brigand and cut-throat of to-day. The -criminal type is nothing but a reversion to the primitive type of the -race, and the representatives of this school of anthropologists have been -untiring in their efforts to discover physical and moral characteristics -common to both: long arms like chimpanzees, four circumvolutions of the -frontal lobes of the brain like the large carnivora, small cranial -capacity like the cave-men, canine teeth like anthropoid apes and a simian -nose. This analogy extends to the eyes, the ears, the hair, and even to -the internal organs, the liver, the heart and the stomach, and the -diseases by which they are affected. It has also been observed that -assassins are brachycephalous and thieves dolichocephalous. Marro -maintains that in many cases metaphors express real facts and embody the -common conclusions of mankind based upon centuries of observation: -swindlers have a foxy look, long-fingered persons are naturally thievish, -whereas a club-fisted fellow is pretty sure to have a pugnacious -disposition, and to be a born rough. Nevertheless social surroundings, -educational influences and other outward circumstances are important -factors, not so much in changing the character as in giving it direction; -the same cerebral constitution and consequent innate predisposition may -make a man a hero or a bravo, a dashing soldier like Phil Sheridan, or a -daring robber like Fra Diavolo, according to the place of his birth and -the nature of his environment. - -In common discourse we speak of atrabiliary, spleeny, choleric, or even -stomachous persons, but such expressions are, in most cases, survivals of -antiquated beliefs concerning the functions of certain physical organs. -Hypochondria has no more originary connection with the cartilage of the -breastbone than with the cartilage of the ear. In the literal sense of the -terms a large-brained man is not necessarily of superior intellectual -power any more than a large-hearted man is naturally generous or a -large-handed man instinctively grasping. So, too, the theory that -intelligence and morality are in direct proportion to the size and -symmetry of the encephalon is not sustained by facts; at least the -exceptions to the rule are so many and so remarkable as to render it -extremely misleading and therefore of little practical value as a -scientific principle. Gambetta's brain, for example, weighed only 1294 -grammes, being fifty-eight grammes less in weight than that of the average -Parisian, and was so abnormally irregular in its configuration as to seem -actually deformed. Any physiologist, says Dr. Manouvrier, who should come -across such a skull in a museum, would unhesitatingly pronounce it to be -that of a savage. The third frontal circumvolution of the left lobe of his -brain had in the posterior part a supplementary fold said by some to be -the organ of speech and by others to be the organ of theft; perhaps both -combined in the ability of the orator to steal away men's hearts, as -Antony says of the seductive eloquence of Brutus. The distinguished -physiologist Bichat was an ardent advocate of this doctrine of the causal -connection between cranial capacity and symmetry and vigorous and -well-balanced mental faculties, but after his death his own cranium was -found to be conspicuously lacking in the very characteristics which he -deemed so essential to man as a moral and intellectual being. The late -German professor Bischoff based his argument against the higher education -of woman on the fact that the average female brain weighs only 1272 -grammes, and asserted that a person with such a light encephalon must be -organically incompetent to master the various branches of study taught in -our universities. A post-mortem examination proved his own brain to be -considerably inferior in weight to that of the average woman. - -Careful investigations would doubtless furnish additional examples of this -comical application of the _argumentum ad hominem_ in refutation of the -notion that intellectual capacity is determined by the bulk of the brain -or the shape of the skull. Ugo Foscolo, one of the most celebrated of -modern Italian poets, had a cranium, which, according to this standard of -appreciation, ought to have belonged to an idiot. On the other hand, the -brain of the "Hottentot Venus," examined by Gratiolet, far surpassed in -the symmetry of both hemispheres and the perfection of its circumvolutions -the normal brains of the Caucasian race. The same phenomenon has been -observed, although in a less striking manner, occasionally in cretins and -quite often in criminals. Character is the resultant of a multitude of -combined forces, the great majority of which are still unknown and perhaps -unknowable quantities. The impulse given by each must be exactly estimated -in order to predetermine the joint effect. No factor which contributes to -its formation must be overlooked, and the acceptance of any one of them, -however important it may seem to be, as the basis on which to reform and -reconstruct our penal legislation, would be premature and pernicious. This -hobby-horsical tendency, which is the vice of every specialist, is now the -besetting sin of criminal anthropologists, each of whom is firmly -convinced that he can reach the goal only on his own garran. - -"The more advanced criminalists," says Professor Von Kirchenheim, "are -becoming thoroughly convinced that the penal codes of to-day do not -correspond to the criminal world of to-day. No science has remained so -deeply rooted and grounded in scholasticism as jurisprudence; and this -evil is most clearly perceptible in the province of criminal law. The -necessity of a change in our penal legislation has already made itself -widely felt. The contest with crime must now be carried on in a different -manner from what it was when men waged war with bows and arrows; modern -criminality must be fought, as it were, with repeating rifles." In other -words, we can never suppress crime by meeting it with bludgeons and -boomerangs and other rude implements of barbarous warfare, but must -encounter it with the finest and most effective weapons of precision, -which the armoury of modern science can put into our hands. Society has -outgrown the crude conception of punishment as mere retaliation or -retribution incited by revenge. There is no doubt that even in the most -enlightened countries, penology as a science is still in its infancy, and -is only just beginning to feel the uncomfortable girding of its scanty -swaddling-bands and blindly kicking itself free from them. That this first -emancipatory effort should be somewhat clumsy, and occasionally attended -by comical casualties and even serious disasters, lies in the very nature -of the case. It is evident, too, that the antiquated and utterly -irrational methods now employed for the suppression of crime tend directly -to increase it. It is the aim of the positive, in distinction from the -classical school of criminalists to discover the real causes of criminal -actions, and thus to endeavour to eradicate or neutralize them. A casual -criminal, for example, whom external conditions, accidental circumstances, -sudden temptations or bad influences have led astray, should not be -treated in the same manner, although guilty of the same overt act, as the -habitual or constitutional criminal, whose wrong-doing arises from a -diseased, ill-balanced or undeveloped mental or physical organization, and -is therefore an inborn and perhaps irresistible proclivity. The latter is -hardly responsible for his conduct, and the possibility of reforming him -is slight. The only proper thing to do with such a culprit is to render -him personally harmless to society either by death or perpetual -incarceration, and to prevent him from propagating his kind. The law of -the survival of the fittest through selection suggests as its necessary -sequence the suppression of the unfittest through sterilization. Nature -has her own effective and relentless method of attaining this desirable -result; but man is constantly thwarting her beneficent purposes by all -sorts of pernicious schemes originating in factitious sentimentalism and -maudlin sympathy, which under the plea of philanthropy tend to foster and -perpetuate moral monstrosities to the discomfort and detriment of -civilized society and the permanent deterioration of the race. To sentence -persons of this class to eight or ten years' imprisonment and then to turn -them loose again as a constant source of peril to mankind, is the greatest -folly that any tribunal can possibly commit. It is a wrong done both to -the criminal and to the community of which he is a member. The penalties -imposed by the law should be determined not solely by the enormity of the -crime, but chiefly by the character of the criminal. Paradoxical as such -a conclusion may be, it is nevertheless a strictly logical deduction from -the premises, that the more corrupt he is by his physical constitution and -therefore the less culpable he is from a moral point of view, the more -severe should be the sentence pronounced upon him. Where the vicious -propensity is in the blood and beyond the reach of moral or penal -purgations, the only safety is in the elimination of the individual, just -as the only remedy for a gangrened limb is amputation. We ridicule ancient -and mediæval courts of justice for prosecuting bugs and beasts, but future -generations will condemn as equally absurd and outrageous our judicial -treatment of human beings, who can no more help perpetrating deeds of -violence, under given conditions, than locusts and caterpillars can help -consuming crops to the injury of the husbandman, or wild beasts can help -rending and devouring their prey. It is also interesting to know that in -former times the animal was not punished capitally because it was supposed -to have incurred guilt, but as a memorial of the occurrence, or in the -language of canonical law: _Non propter culpam sed propter memoriam facti -pecus occiditur_. It was put to death not because it was culpable, but -because it was harmful; and this is the ground on which the radical wing -of criminal anthropologists would repress and eliminate a vicious person -without regard to his mental soundness or moral responsibility; to use -Garofalo's metaphor he is a microbe injurious to the social organism and -must be destroyed. - -Lombroso carries his theory of the innateness, hereditability and -ineradicableness of criminal propensities so far as to affirm that -"education cannot change those who are born with perverse instincts," and -to despair of correcting an obstinate bias of this sort even in a child. -In accordance with this idea his disciple, Le Bon, proposes to "deport to -distant countries all professional criminals or persistent relapsers into -vice (_récidivistes_) together with their posterity," and would thus -practically revive the barbarous principle of visiting the sins of the -fathers upon the children, although he does not regard their conduct as -sinful in the sense of being a voluntary transgression of the moral law, -but as the result of a transmitted taint and organic deficiency, for which -the individual is in no wise responsible. It is hardly necessary to add -that this doctrine is not sustained by the statistics of reformatories, -houses of refuge and similar institutions, which have now taken the place -of the prison and the scaffold in the case of juvenile offenders. - -Those who look upon crime as a pathological phenomenon find a striking -illustration and strong confirmation of their views in violations of the -law committed under the impulse of hypnotic suggestion. Some maintain that -all acts originating in this manner are purely automatic, and acquit the -person performing them of all moral and legal responsibility, since they -express the will and purpose of the hypnotizer, who alone should be held -accountable. Others hold that the man, who consents to be hypnotized and -thus voluntarily surrenders his will-power and permits himself to be used -as an instrument for the perpetration of crime, should be punished for his -offences and not allowed to go scot-free by pleading the _force majeure_ -of hypnotic suggestion. The liability to punishment, it is justly argued, -would be a safeguard to society by putting a wholesome and effective check -on hypnotic experimentations. There is at least no reason why the -hypnotized subject should not be called to account for accomplicity. Any -passion may become automatic and irresistible by long indulgence and -assiduous cultivation, so that the man is overmastered by it and cannot -help yielding to it under strong temptation; but the victim of a vicious -habit has no right to urge the force of an evil propensity in exculpation -of himself. The inborn or inveterate badness of a man's character may -explain, but cannot excuse his bad conduct in the impartial and inexorable -eye of justice. So, too, he who sins against his own worthiness and -dignity as a rational being by choosing to annul his power of -self-determination as a voluntary agent and become a helpless tool in the -hands of another, ought not wholly to escape the consequences of his -folly. That the hypnotizer should be made fully responsible for the -realization of his suggestions, no representative of either the positive -or classical school of criminalists would probably deny. To take a man's -life by means of hypnotic suggestion is as truly subornation to murder as -to hire an assassin to plunge a dagger into his heart. - -As regards hypnotism itself, it would be strange enough if we should -discover in it the real scientific basis of witchcraft, and modern -legislation should prosecute and punish hypnotizers as mediæval -legislation prosecuted and punished sorcerers. The sympathetic influence -of a morbidly imaginative mind upon the body in directing the currents of -nervous energy and increasing the flow of blood towards particular points -of the physical organism, so as to produce stigmata and similar abnormal -phenomena, has long been recognized as an adequate explanation of much -mediæval and modern miracle-mongering. It would now seem as if hypnotism, -or the magnetic influence of one man's will upon another man's mind and -body were destined to furnish the key to still greater marvels and reveal -the true nature and origin of what has hitherto passed for divine -inspiration or diabolical possession. Charcot, Renaut, Fowler and other -eminent neuropathologists have conclusively shown that certain forms of -hysteria sometimes produce tumors, ulcers, muscular atrophy, paralysis of -the limbs and like affections apparently organic, but really nervous. In -such cases any kind of faith-cure, in which the patient has confidence, -prayer, the laying on of hands, the water of Lourdes or of St. Ignatius, -medals of St. Benedict, scapularies of the Virgin, seraphic girdles, a -pilgrimage to the shrine of a saint or contact with a holy relic may prove -far more efficacious than drugs and are therefore recommended by priests -and occasionally even prescribed by physicians, who are far too -enlightened to regard such healings as miraculous or supernatural. The -success of scientific research in disclosing the physical basis of -intellectual life is gradually undermining the foundations of so-called -spiritualism, and rendering it more and more impossible to mistake -symptoms of chlorosis and hysterical weakness for spiritual gifts and -signs of God's special favour. Sickly women are no longer treated as -seeresses and their vague and incoherent sayings treasured as oracular -utterances. - -One of the chief difficulties encountered by those who seek to frame and -administer penal laws on psycho-pathological principles arises from the -fact that no one has ever yet been able to give an exact and adequate -definition of insanity. However easy it may be to recognize the grosser -varieties of mental disorder, it is often impossible even for an expert to -detect it in its subtler forms, or to draw a hard and fast line between -sanity and insanity. An eminent alienist affirms that very few persons we -meet in the counting-room, on the street or in society, or with whom we -enjoy pleasant intercourse at their firesides, are of perfectly sound -mind. Nearly every one is a little touched; some molecule of the brain has -turned into a maggot; there is some topic that cannot be introduced -without making the portals of the mind grate on their golden hinges,--some -point at which we are forced to say,-- - - "O, that way madness lies; let me shun that." - -It is possible, however, that this very opinion may be a fixed idea or -symptomatic eccentricity of the alienist himself. The theory that all men -are monomaniacs may be merely his peculiar monomania. Still there is -unquestionably this much truth in it, that nearly every person has -developed some faculty at the expense of the others and thus destroyed his -mental equilibrium. Every tendency of this kind, which is not checked or -balanced and in some way rounded off in the growth of the character, -becomes morbidly strong and leads to a sort of insanity. The specialist is -always exposed to this danger of growing into a man of one idea; his -monomania may be in the direction of valuable research or in the pursuit -of a foolish whim, resulting in useful inventions or dissipating itself in -chimerical projects; it may be a harmless crotchet or a vicious -proclivity, philanthropic or misanthropic; it is, nevertheless, a bent or -bias and so far a deviation from the norm of perfect intellectual -rectitude. - -A madman, says Coleridge, is one who "mistakes his thoughts for person and -things." But here the frenzies of the lunatic intrench on the functions of -the poet, who "of imagination all compact," takes his fancies for -realities, - - "Turns them to shapes, and gives to airy nothing - A local habitation and a name." - -Coleridge's definition includes also the mythopoeic faculty, the power of -projecting creations of the mind and endowing them with objective -actuality and independent existence, which in the infancy of the race -peopled heaven and earth with phantasms, and still croons over cradles and -babbles of brownie and fairy in nurseries and chimney-corners. No progress -of science can wholly eradicate this tendency to mythologize. In the -absence of better material, it seizes upon the most prosaic and practical -improvements in modern household life and clothes them with poetry and -legend. The imaginative child of New York or Boston, after feeding the -mind on fairy tales, converts the ordinary gas-pipe into the den of a -dragon, which puts forth its fiery tongue when the knob is turned. The -sleeping figure of a virgin carved in marble and copied from an ancient -Greek sculpture of Ariadne, which reposes on an arch in the park of -Sans-souci at Potsdam, has been transformed by the popular imagination -into an enchanted princess, who will awake as soon as a horseman succeeds -in springing over it three times with his steed. So vivid is the belief in -this story that many good Christians never pass through the archway -without making the sign of the cross as a prophylactic against possible -demonic influences. The Suabian peasant still believes that the railroad -is a device of the devil, who is entitled by contract to a tollage of one -passenger on every train; he is in a constant state of anxiety lest his -turn may come on the next trip and always wears a crucifix as the best -means, so far as his own person is concerned, of cheating the devil of his -due. As the Church has uniformly consigned great inventors to the infernal -regions, his Satanic Majesty could have never had any lack of ingenious -wits among his subjects capable of advising him in such matters. - -An important consideration, which did not disturb the minds of mediæval -jurists, nor stay the hand of strictly retributive justice, is the fact, -now generally admitted, that crimes, like all other human actions, are -subject to certain fixed laws, which seem to some extent to remove them -from the province of free will and the power of individual determination. -Professor Morselli has shown statistically that suicide, which we are wont -to consider a wholly voluntary act, is really dependent upon a great -variety of circumstances, over which man has no control: climate, -seasons, months, days, state of crops, domestic, social, political, -financial, economical, geographical and meteorological conditions, sun, -moon, and stars all work together, impelling him to self-destruction or -keeping him from it. Suicide increases when the earth is in aphelion, and -decreases when it is in perihelion. Race and religion are also important -factors in aggravating or mitigating the suicidal tendency, Germans and -Protestants being most, and Semitic nations and Mohammedans, including -those of Aryan and African blood, being least addicted to it. Suicide is, -in fact, the resultant of a vast number of complicated and far-reaching -forces, which we can neither trace nor measure, and of which the victims -themselves are for the most part unconscious. To a very considerable -degree, it is a question of environment in the broadest sense of the term; -"an effect," says Morselli, "of the struggle for existence and of human -selection, working according to the laws of evolution among civilized -peoples." What is proved to be true of self-slaughter is equally so of -murder and every other crime. - -An additional reflection, that "must give us pause" in the presence of -crime, is that some of the chief causes operating to produce the manifold -evils afflicting society and threatening to subvert it, are due in a great -measure to the present egoistic organization of our social and industrial -system, the selfish and unscrupulous power of wealth directed and -stimulated by superior intelligence and energy, on the one hand, and the -brute forces of ignorance driven to despair by the disheartening and -debasing pressure of poverty, on the other hand, arrayed against each -other in fierce and bitter conflict. Much of the individual viciousness, -which society is required to punish, springs directly from the unjust and -injurious conditions of life, which society itself has created. It is the -perception of this fact that disturbs the conscience, puzzles the will, -and palsies the arm of the modern law-giver and executor of justice. - -Mediæval legislators were not restrained by any scruples of this sort; -they regarded the criminal, both human and animal, as the sole author of -the crime, ascribing it simply to his own wickedness and never looking -beyond the mere actual deed to the social influences, psychical and -physical characteristics and inherited qualities, that impelled him with -irresistible force to do iniquitous things. This was doubtless a very -narrow, superficial and utterly unphilosophical view of human action and -responsibility; the danger now-a-days lies in the opposite extreme, in the -tendency to pity the vicious individual as the passive product and -commiserable victim of unfortunate conditions, and while engaged in the -laudable attempt to improve these conditions by working out broad and -benevolent plans of permanent relief and reformation for the future -amelioration of society, to relax penalties and to fail in providing by -sufficiently stringent measures for its present security. Tribunals have -only to do with individual criminals as their conduct affects the general -welfare. In what manner their characters have been formed by ancestral -agencies and other predispositions may be an interesting study to the -psychologist and the sociologist, but does not concern the judge or the -jurist in the discharge of their official functions. The problem of crime -is therefore a very simple one, so far as the criminal lawyer has to deal -with the concrete case, but very complex, when we look beyond the overt -act to its genesis in the life of the race. The proper administration of -penal justice is weakened and defeated by mixing itself up with -psycho-pathological inquiries wholly foreign to it. - -It is a curious coincidence that the theory of evolution, in its -application to man's free agency, should arrive at essentially the same -conclusion as the theology of Augustine and Calvin. Predestination, which -the suffragan of Hippo and the Genevan divine attributed to the arbitrary -decrees of God, evolution traces to the influences of heredity upon -individuals, predetermining their bodily and mental constitutions. There -is, however, a wide difference between these two doctrines in their -workings. From the clutch of a deity "willing to show his wrath and to -make his power known," no man can by any effort of his own effect his -escape. Against this imperious and general sentence of damnation no -process of development, no upward striving, no individual initiative can -be of any avail. Evolution, on the contrary, promises a gradual release -from low ancestral conditions--the original sin of the theologians--and -opens up to the race a way of redemption, not only through natural -selection and spontaneous variations resulting in higher and nobler types -of mankind, but also through the modification of inherited traits by -careful breeding, thorough discipline and the conscious and constant -endeavour of every human being to improve and perfect himself. Salvation -through the "election of grace" is by no means identical with salvation -through the "survival of the fittest." The righteousness of those whom God -has chosen as "the vessels of mercy whom he had afore prepared unto -glory," may be and probably is "as filthy rags"; evolutionary science, on -the contrary, recognizes and appreciates redeemable qualities by -selecting, strengthening and propagating them and by this means aims -ultimately to redeem the world. It imposes upon each man the duty and -necessity of working out his own salvation, not with fear and trembling at -the prospect of meeting an angry deity, but with hope and cheerfulness, -knowing that the beneficent forces of nature are working in him, as in -all forms of organic life, in obedience to the laws of development, -towards the goal of his highest possible perfection by gradually -eliminating the heirloom of the beast and the savage, and letting the -instincts of the tiger and the ape slowly die within him. "The best man," -said Socrates, "is he who seeks most earnestly to perfect himself, and the -happiest man is he who has the fullest consciousness that he is perfecting -himself." This utterance of the Athenian sage expresses the fundamental -principle of the ethics of evolution, according to which there can be no -greater sin than the neglect of self-culture, holding, as it does, in the -province of science a place corresponding in importance to that which the -unpardonable sin against the Holy Ghost holds in the province of theology. -No one is blamable for inheriting bad tendencies; but every one is -blamable for not striving to eradicate them. If evil impulses prove to be -irresistible, then society must step in and render them harmless by -depriving of life or liberty the unfortunate victims of such propensities. - -Again, if the mental and moral qualities of the lower animals differ from -those of man, not in kind, but only in degree, and the human mammal is -descended from a stock of primates, to which apes and bats belong, and -dogs and cats and pigs are more remotely akin, it is difficult to -determine the point at which moral and penal responsibility ceases in the -descending, or begins in the ascending scale of being. That beasts and -birds and even insects commit acts of violence, which in human agents -would be called crimes, and which spring from the same psychical causes -and, as we have shown in another work (_Evolutionary Ethics and Animal -Psychology._ New York: D. Appleton and Co.; London: William Heinemann, -1898), are punished by the herd, the flock or the swarm in a more or less -judicial manner, is undeniable. The zoöpsychologist Lacassagne divides the -criminal offences of animals into six classes or categories, the ground of -the classification being the motives which underlie and originate them. -The lowest or most rudimentary motive to crime in both man and beast is -hunger, the operation of which is seen in the spectacle of one savage -killing another in order to get sole possession of a wild beast slain by -them in common, and in the ferocity of two dogs fighting over a bone. -Perhaps the great majority of crimes afflicting society at the present -time have their origin in this source. Next to the desire of the -individual to preserve himself comes the desire to preserve his kind; this -motive is commonly considered a more generous impulse and is praised as -parental affection. This earliest and most primitive of altruistic -emotions is exceedingly strong in the lower animals, especially in those -whose offspring are comparatively helpless in infancy, as is the case -with all species of monkeys, and manifests itself not only in tender care -of the young, but also in theft, robbery, and other acts of violence -committed for their sake. The wanton love of destruction characterizes -both beasts and men; there are roughs and vandals among the former as well -as among the latter, who take a malicious delight in doing injury to -persons and property. Vanity and the desire of "showing off" play no small -part in the wrongdoings of apes and apish men and women. Other incentives -to crime are ambition, sexual passion, gregariousness, the concentrated -egoism and merciless brutality of a crowd even in the most civilized -communities, the outrages so recklessly perpetrated by what a French -jurist, M. Tarde, calls "that impulsive and maniac beast, the mob." It may -be remarked, too, that the kinds of criminal actions, which civilization -tends to diminish among men, domestication tends to diminish among the -lower animals. - -If these statements be correct, why should not animals be held penally -responsible for their conduct as well as human beings? There are men -apparently less intelligent than apes. Why then should the man be -capitally punished and the ape not brought to trial? And if the ape be -made responsible and punishable, why not the dog, the horse, the pig, and -the cat? In other words, does evolutionary criminology justify the -judicial proceedings instituted by mediæval courts against animals or -regard the typical human criminal as having in this respect no supremacy -over the beast? Does modern science take us back to the barbarities of the -Middle Ages in matters of penal legislation, and in abolishing judicial -procedure against quadrupedal beasts is it thereby logically forced to -stay the hand of justice uplifted against bipedal brutes? The answer to -these questions is unhesitatingly negative. Zoöpsychology is the key to -anthropopsychology and enables us to get a clearer conception of the -genesis of human crime by studying its manifestations in the lower -creation; we thus see it in the process of becoming, acquire a more -correct appreciation of its nature and origin and learn how to deal with -it more rationally and effectively in bestial man. - -Another point discussed by Plato and still seriously debated by writers on -criminal jurisprudence is whether punishment is to be inflicted _quia -peccatum est_ or _ne peccetur_; in other words, whether the object of it -should be retributive or preventive. The truth is, however, that both of -these motives are operative and as determining causes are so closely -intermixed that it is impossible to separate them. As the distinguished -criminalist, Professor Von Liszt, has remarked one might as well ask -whether a sick man takes medicine because he is ill or in order to get -well. The penalty is imposed in consequence of the commission of a crime -and also for the purpose of preventing a recurrence of it, and is -therefore both retributory and reformatory. Punishment is defined by Laas -as "ethicized and nationalized revenge, exercised by the state or body -politic, which is alone impartial enough to pronounce just judgments and -powerful enough to execute them." Civilization takes vengeance out of the -hands of the injured individual and delegates it to the community or -commonwealth, which has been outraged in his person. The underlying -principle, however, is, in both cases, the same, and the idea of justice, -as administered by the community, does not rise above that entertained by -the aggregate or average of individuals composing it. - -The recent growth of sociology and especially the scientific study of the -laws of heredity thus tend, by exciting an intelligent interest in the -psychological solution of such questions, to render men less positive and -peremptory in their judicial decisions. The intellectual horizon is so -greatly enlarged and so many possibilities are suggested, that it is -difficult for conscientious persons, strongly affected by these -speculations and honestly endeavouring to make an ethical or penal -application of them, to come to a prompt and practical conclusion in any -given case. The voice of decision loses its magisterial sternness and - - "the native hue of resolution - Is sicklied o'er with the pale cast of thought." - -If it be true, as Mr. Galton affirms, that legal ability is transmitted -from father to son, criminal proclivity may be equally hereditary, and the -judge and the culprit may have reached their relative positions through a -line of ancestral influences, working according to immutable and -inevasible laws of descent. - -Schopenhauer maintained the theory of "responsibility for character," and -not for actions, which are simply the outgrowth and expression of -character. The same act may be good or bad according to the motives from -which it springs. This distinction is constantly made both in ethics and -in jurisprudence, and determines our moral judgments and judicial -decisions. Yet the chief elements, which enter into a person's character -and contribute to its formation, lie beyond his control or even his -consciousness, and in many cases have done their work before his birth. -Responsibility for character is equivalent to responsibility for all the -inherited tendencies and prenatal influences, of which character is the -resultant, and leads at last to the theological dogma of the imputation of -sin all the way back to Adam as the federal head of the race, a doctrine -which Schopenhauer would be the first to repudiate. Besides, evil -propensities and criminal designs are recognizable and punishable only -when embodied in overt acts. The law cannot deprive a man of life or -liberty because he is known to be vicious and depraved, although the -police in the exercise of its protective and preventive functions and as a -means of providing for the general security, may feel in duty bound to -keep a watchful eye on him and to make an occasional raid on the dens and -"dives" haunted by him and his kind. There are also instances on record, -in which it is impossible to trace the culpable act to any marked -corruption of character. - -A rather remarkable illustration of this fact is furnished by the trial of -Marie Jeanneret, which took place at Geneva in Switzerland in 1868 and -which deservedly ranks high among the _causes célèbres_ of the present -century, both as a legal question and a problem of psycho-pathology. [At -the time when this trial occurred, the writer directed attention to the -peculiar and perplexing features of the case in _The Nation_ for January -7, 1869, p. 11.] Dumas in his novel _Le Comte de Monte Christo_, describes -the character and career of a young, refined and beautiful woman, moving -in the best circles of Parisian society, and yet poisoning successively -six or seven members of her own family; but even the most imaginative and -audacious of French romancers did not dare to delineate such criminality -without ascribing it to some apparently adequate motive. Madame de -Villefort administered deadly potions to her relatives under the impulse -of a morbidly intense maternal love, which centred all her moral and -intellectual faculties on the idea of making her son the sole heir to a -large estate. Affection and social ambition for her offspring incited her -to the murder of her kin. But the invention, which created such a monster -of sentimental depravity, has been far surpassed in real life by the -exploits of Marie Jeanneret, a Swiss nurse, who took advantage of her -professional position to give doses of poison to the sick persons confided -to her care, from the effects of which seven of them died. - -In the commission of this monotonous series of diabolical crimes, the -culprit does not seem to have been animated either by animosity or -cupidity. On the contrary, she always showed the warmest affection for her -victims, and nursed them with the tenderest care and the most untiring -devotion, as she watched the distressful workings of the fatal draught; -nor did she derive the slightest material benefit from her course of -conduct, but rather suffered considerable pecuniary loss by the death of -her patients. The testimony of physicians and alienists furnished no -evidence of insanity, nor did she show any signs of atavistic reversion, -physiological abnormity or hereditary homicidal bent. Monomaniacs usually -act fitfully and impulsively; but Marie Jeanneret always manifested the -coolest premeditation and self-possession, never exhibiting the least -hesitation or confusion, or the faintest trace of hallucination, but -answered with the greatest clearness and calmness every question put by -the president of the court. Even M. Turrettini, the prosecuting attorney, -in presenting the case to the jury, was unable to discover any rational -principle on which to explain the conduct and urge the conviction of the -accused; and after exhausting the common category of hypotheses and -showing the inadequacy of each, he was driven by sheer stress of -inexplicability to seek a motive in "_l'espèce de volupté qu'elle -éprouverait à commettre un crime_," or what, in less elegant, but more -vigorous Western vernacular, would be called "pure cussedness." Not only -was such an explanation merely a circumlocutory confession of ignorance, -but it was wholly inconsistent with the general character of the indictee. - -Indeed, the persistent and pitiless perpetration of this one sort of crime -by this woman, under circumstances which should have excited compassion in -the hardest human heart, seems more like the working of some baneful and -irrepressible force in nature, or the relentless operation of a -destructive machine, than like the voluntary action of a free and -responsible moral agent. M. Zurlinden, the counsel for the defendant, -dwelt with emphasis upon this mysterious phase of the case and thus saved -his client from the scaffold. The jury, after five hours' deliberation, -rendered a verdict of "Guilty, with extenuating circumstances," as the -result of which the accused was sentenced to twenty years' hard labour. -As a matter of fact, there were no circumstances of an extenuating -character except the utter inability of the jurors to discover any motive -for the commission of such a succession of cold-blooded atrocities. - -After fifteen years' imprisonment the convict died. During this whole -period of incarceration she not only showed great intelligence and strict -integrity, but was also remarkably kind and helpful to all with whom she -came in contact. She instructed her fellow-convicts in needle-work and -fine embroidery, loved to attend them in sickness, and by her general -influence raised very perceptibly the tone of morals in the workhouse. If -it be true, as asserted by Mynheer Heymanns, one of the latest expounders -of Schopenhauer's ethics, that "a man is responsible for his actions only -so far as his character finds expression in them, and is to be judged -solely by his character," what shall be done in cases like the -afore-mentioned, in which the criminal conduct is exceptional, and so far -from being symptomatic of the general character stands out as an isolated -and ugly excrescence and appalling abnormity? According to this theory -crime is to be punished only when it is the natural outgrowth and -legitimate fruit of the criminal's individuality and society is to be left -unprotected against all maleficence not traceable to such an origin. - -There can be hardly any doubt that the Swiss nurse was a toxicomaniac and -that she had become infatuated with poisons, partly by watching their -effects on her own system, and partly by reading about their properties in -medical and botanical works, to the study of which she was passionately -devoted. Did not Mithridates, if we may believe the statements of Galen, -experiment with poisons on living persons? Why should she not follow such -an illustrious example, especially as she never hesitated to take herself -the potions she administered to others; the only difference being that -habit had made her, like the famous King of Pontus, proof against their -venom. She often attempted analyses of these substances, and in one -instance was severely burned by the bursting of a crucible, in which she -was endeavouring to obtain atropine from atropa belladonna or deadly -nightshade. It was this terrible poison, which is endowed with exceedingly -energetic qualities and is therefore used by physicians with extreme -precaution, that seems to have had an irresistible fascination for her, -growing into an insane desire to discover and test its occult virtues. She -had read and heard of zealous scientists and illustrious physicians, who -had experimented on themselves and on their disciples, and become the -benefactors of mankind; why then should she not adopt the same method in -the pursuit of truth and use for this purpose the physiological material -which her profession placed in her hands? - -However preposterous such reasoning on her part may appear to us and -however vaguely and subconsciously the mental process may have been -carried on, it offers the only theory adequate to explain all the facts -and to account for the almost incredible union of contradictory traits in -her character. The enthusiasm of the experimenter overbore in her the -native sympathy of the woman. She observed the writhings of her poisoned -victims with as "much delight" as Professor Mantegazza confesses he felt -in studying the physiology of pain in the dumb animals "shrieking and -groaning" on his tormentatore. "The physiologist," says Claude Bernard, -"is no ordinary man. He is a savant, seized and possessed by a scientific -idea. He does not hear the cries of suffering wrung from racked and -lacerated creatures, nor see the blood which flows. He has nothing before -his eyes but his idea and the organisms, which are hiding the secrets he -means to discover." Marie Jeanneret was a fanatic of this kind. She, too, -was a woman possessed with ideas as witches were once supposed to be -possessed with devils. Had she prudently confined her experiments to the -torture of helpless animals, she might perhaps have taken rank in the -scientific world with Brachet, Magendie and other celebrated vivisectors, -and been admitted with honour to the Academy, instead of being thrust -ignominiously into a penitentiary. - -The assertion as regards any supposed case of madness, that "there's -method in it," is popularly assumed to be equivalent to a denial of the -existence of the madness altogether. But psycho-pathology affords no -warrant for such an assumption. An individual, who commits murder under -the impulse of morbid jealousy, pecuniary distress, social rancour, -political or scientific fanaticism, or any other form of monomania, is not -the less the victim of a mind diseased because he shows rational -forethought in planning and executing the deed. His mental faculties may -be perfectly healthy and normal in their operation up to the point of -derangement, from which the fatal act proceeds. No chain is stronger than -its weakest link; and this is equally true of physical and psychical -concatenations. Under such circumstances the sane powers of the mind are -all at the mercy of the one fault and are made to minister to this single -infirmity. - -According to English law a man is irresponsibly insane, when he has "such -defect of reason from disease of the mind as not to know the nature and -quality of the act he was doing, or, if he did know it, that he did not -know he was doing what was wrong." This definition is very incomplete and -covers only the most obvious forms of insanity; perhaps in the great -majority of cases there is no "defect of reason" nor "disease of mind" in -the proper sense of these terms, but only a disturbance of the emotions or -perversion of the will originating in physical disorder. Besides, it is -undeniable that animal intelligence is capable of distinguishing between -right and wrong and of comprehending what is punishable and what is not -punishable. In general when a dog does wrong, he knows that he is doing -wrong; and a monkey often takes delight in doing what is wrong simply -because he knows it is wrong. If a monkey gets angry and kills a child, he -obeys the same vicious propensity that impels a brutal man to commit -murder. There is no greater "defect of reason" in one case than in the -other. Why then should the monkey be summarily shot or knocked on the -head, and the man arrested, tried, convicted and hanged by the constituted -authorities? Simply because such a public prosecution and execution would -not exert any influence whatever in preventing infanticide on the part of -other monkeys; if it could be shown that a formal trial of the monkey -would produce this salutary effect, then it certainly ought not to be -omitted. The recent attempt to modify the English law so as to render all -"certifiably insane" persons irresponsible for their actions, would result -in the abolition of all punishment for crime, since many physicians regard -every criminal as insane and would not hesitate to certify their opinion -to the proper tribunal. - -It is no easy task now-a-days for penal legislation to keep pace with -psychiatral investigation and to adjust itself to the wide range and nice -distinctions of modern psycho-pathology; nor is it necessary to do so. -_Salus socialis suprema lex esto._ Society is bound to protect itself -against every criminal assault, no matter what its source or character may -be. This is the ultimate object not only of the prison and the scaffold, -but also of all reformatories for juvenile offenders and vagabonds, who by -judicious correction and instruction may perhaps be brought to amend their -ways and thus be prevented from becoming a social danger by swelling the -disorderly ranks of the permanently criminal classes. If a person proves -to be unamenable to moral or penitential measures and remains an -incorrigible transgressor, it is the duty of the community to set him -aside by death or by life-long durance. Penal legislation does not aim -primarily at the betterment of the individual; laws are enacted not for -the purpose of making men good and noble, but solely for the purpose of -rendering them safe members of society. This is effected by depriving the -irremediably vicious of their liberty and, if necessary, also of their -life. - -The pardoning power, too, must be exercised with the utmost reserve and -circumspection. The state does not look upon public offences as sins but -as crimes. The introduction of the theological conception of delinquencies -into the province of civil government has always been the vice of -hierarchies and has never failed to work immense mischief by leading -inevitably to impertinent intermeddling with matters of conscience and -private opinion, putting a premium on pretended repentance and like -hypocrisies, and converting the witness-box into a confessional and the -court of justice into a court of inquisition. This has been uniformly the -result wherever a body of priests has become a body of rulers, endowed -with sovereignty in the administration of secular affairs. - -If it could be conclusively proved or even rendered highly probable, that -the capital punishment of an ox, which had gored a man to death, deterred -other oxen from pushing with their horns, it would be the unquestionable -right and imperative duty of our legislatures and tribunals to re-enact -and execute the old Mosaic law on this subject. In like manner, if it can -be satisfactorily shown that the hanging of an admittedly insane person, -who has committed murder, prevents other insane persons from perpetrating -the same crime, or tends to diminish the number of those who go insane in -the same direction, it is clearly the duty of society to hang such -persons, whatever may be the opinion of the alienist concerning their -moral responsibility. Nor is this merely a hypothetical case or purely -academical question. It is a well-established fact, that the partially -insane, especially those affected with "moral insanity" or so-called -"cranks," have their intelligence intact, and are capable of exercising -their reasoning powers freely and fully in laying their plans and in -carrying out their designs. Indeed, criminals of this class are sometimes -known to have entertained the thought that they would be acquitted on the -ground of insanity, and have thereby been emboldened to do the deed; and -it is by no means impossible, but highly probable, that a belief in the -certainty of punishment would have acted as an effective deterrent. A case -of this kind occurred in 1894 in England, where an inmate of a lunatic -asylum deliberately murdered a lawyer, who was visiting the institution. -The murderer declared that he had no grudge against his victim, but -believed himself to be persecuted in general and wished to call attention -to his wrongs by assassinating some official or prominent person. His -method of redress was that of the ordinary anarchist; and his confession -that he would not have dared to commit the act unless he had believed that -as a certificated lunatic under confinement he ran no risk of being -hanged, illustrates the point in question. There can be no doubt, for -example, that the execution of Guiteau for the assassination of Garfield -has greatly lessened the dangers of this kind to which the President of -the United States is exposed; just as the swift and severe punishment of -the Chicago anarchists has dampened the zeal and restrained the activity -of the fanatics, who labour under the delusion that, in a free country, -dynamite bombs are the fittest means of disseminating reformatory ideas -and bringing about the social and political regeneration of the world. - -From this point of view it is hardly necessary to remark upon the -absurdity of Lombroso's assertion that the jurists, who formerly condemned -and punished animals, were more logical and consistent than those who now -pass sentence of death on cretins like Grandi or cranks (_grafomani -matteschi_) like Passannante and Guiteau (_Archivio di Psichiatria._ -Torino, 1881, Vol. II. Fasc. IV.), since he utterly ignores the preventive -character and purpose of judicial punishment and its practical utility in -checking the homicidal propensities of such persons, whereas the criminal -prosecution and capital punishment of a pig for infanticide will not have -the slightest effect in preventing other pigs from mangling and devouring -little children. - -That animals might be deterred from doing violence to men by putting one -of their kind to death and suspending its body as a scarecrow is -maintained by a distinguished writer in the first half of the sixteenth -century, Hierolymus Rosarius, the nuntius of Pope Clement VII. to the -court of Ferdinand I., then King of Hungary, who states that in Africa -crucified lions are placed near towns, and that other lions, however -hungry they may be, are kept away through fear of the same punishment: -_cujus poenæ metu, licet urgeat fames, desinunt_. He records also that in -riding from Cologne towards Düren, he and his companions saw in the vast -forest two wolves in brogans hanging on a gallows, just like two thieves, -as a warning to the rest of the pack: "Et nos ab Agrippina Colonia Duram -versus equitantes in illa vasta silva, vidimus duos caligatos lupos non -secus quam duos latrones, furcæ suspensos; _quo similis poenæ formidine a -maleficio reliqui deterreantur_." In like manner the American farmer sets -up a dead hawk as a deterrent for the protection of his hens. We may add -that Rosarius entertained a high opinion of the intelligence and moral -character of animals and wrote a book to prove their frequent superiority -to men in the use of their rational faculties. This very clever and -original work entitled: _Quod animalia bruta sæpe ratione utantur melius -homine_, was first published by Gabriel Naudé at Paris in 1648; an -enlarged edition was issued by Ribow at Helmstedt in 1728, with a -dissertation on the soul in animals. - -In the class of ill-poised minds, yclept cranks, just mentioned, the -spirit of imitation is peculiarly strong and morbidly contagious. The -celebrated psychiater, Baron Von Feuchtersleben, in his treatise _On the -Diatetics of the Soul_, cites the case of a French soldier, who shot -himself in a sentry-box; soon afterwards, several other soldiers took -their lives in the same manner and in the same place. Napoleon I. ordered -the sentry-box to be burned and thus put an end to the suicides. A similar -instance is recorded by Max Simon in his _Hygiène de l'esprit_, in which -he states that a workman hanged himself in the embrasure of a gate, and -his example was followed directly by a dozen of his fellows, so that it -was found necessary to wall up the gate in order to stop this strange -epidemic. The same effect is produced by popular romances, in which the -hero or heroine or both together dispose of themselves in this way; -sometimes whole communities are thus infected by a single work of fiction; -perhaps the most notable case of this kind in modern literature is the era -of sentimentalism and suicidism which followed the publication of Goethe's -_Werther_. It is well known, too, that another class of sensational -novels, the plots of which consist in the development of criminal -intrigues, tend to promote crime by rendering it fascinating and -indicating an attractive and exciting method of perpetrating it. We have a -recent and very striking instance of this kind in the origin and evolution -of the notorious Dreyfus affair. In June 1893, a year and a half before -the arrest of Dreyfus, a novel entitled _Les Deux Frères_, by Louis -Letang, appeared in the Paris _Petit Journal_, the plot of which may be -concisely described as follows. A young and capable officer, Captain -Philippe Dormelles, who holds a position of confidence in the French -department of war, is envied and hated by two colleagues named Aurélien -and Daniel. Their enmity and jealousy finally become so intense that they -conspire to effect his ruin by accusing him of selling to a foreign power -the secrets of the national defence. It is arranged that a compromising -letter imitating the handwriting of Dormelles and addressed to a foreign -military _attaché_ shall be placed in the secret archives, where it will -fall into the hands of the head of the department Lieutenant-Colonel -Alleward. Dormelles is arrested and thrown into the prison Cherche-Midi, -and at the same time Daniel causes a violent article to be inserted in a -newspaper _Le Vigilant_, charging him with high treason, and seeking to -excite public opinion against him. This article concludes with the false -statement that a search in Dormelles' department had led to the discovery -of important documents referring to the fabrication of smokeless powder, -and that thereupon Dormelles had confessed his guilt. He is then sentenced -to the galleys, but his betrothed is convinced of his innocence and -finally succeeds in detecting and exposing the forgeries. -Lieutenant-Colonel Alleward is arrested and commits suicide in prison, -not with a razor like Henry, but with a revolver. One scene in the novel -describes the appearance of a veiled lady on the very spot near the Champs -Elysées, where the mysterious veiled lady is said to have appeared to -Esterhazy three years later and for much the same purpose. The French -minister of war, Mercier, was forced to proceed against Dreyfus by the -_Libre Patrole_, which published lies about his confession, as _Le -Vigilant_ did about Dormelles. The only rational explanation of this -remarkable concurrence of events, as they are narrated in the fiction and -afterwards occurred in fact, is that the method of conducting the -conspiracy against Dreyfus and the possibility of accomplishing it were -suggested by Letang's story, although the conspirators doubtless did not -anticipate that the logic of events would render the results of their -falsehoods and forgeries as fatal to them as they were to their prototypes -in the novel. Every scoundrel is firmly convinced that he can pattern -after his precursors in villainy, avoid their mistakes and commit the same -crime without incurring the same penalty. - -That paroxysms of epilepsy, hysterics and various forms of frenzy are -contagious and may be easily communicated to nervous persons, who witness -them, has been clearly proved. Vicious passions obey the same law of -imitation even in a still higher degree than tender emotions and nervous -diseases, and more than two centuries ago the illustrious jurisconsult, -Samuel Pufendorf, laid down the general principle that he who for the -first time commits a crime liable to spread by contagion and to become -virulent, should be punished with extreme severity, in order that it may -not infect others and create a moral pestilence. - -The hemp cure is always a harsh cure, especially where there is any doubt -as to the offender's mental soundness; but in view of the increasing -frequency with which atrocious and wilful crime shelters itself under the -plea of insanity and becomes an object of misdirected sympathy to maudlin -sentimentalists, the adoption of radical and rigorous measures in the -infliction of punishment were perhaps an experiment well worth trying. -Meanwhile, let the psychiater continue his researches, and after we have -passed through the present confused and perilous period of transition from -gross and brutal mediæval conceptions of justice to refined and -humanitarian modern conceptions of justice, we may, in due time, succeed -in establishing our penal code and criminal procedure upon foundations -that shall be both philosophically sound and practically safe. - - - - -APPENDIX - -CONTAINING ORIGINAL DOCUMENTS - - -A - -TESTIMONIALES ET REASSUMPTUM - -Anno domini millesimo quingentesimo octuagesimo septimo et die decima -tertia mensis aprilis comparuit in bancho actorum judicialium episcopatus -Maurianne honestus vir Franciscus Ameneti scindicus et procurator -procuratorioque nomine totius communitatis et parrochie Sancti Julliani -qui in causa quam pretendunt reassumere prosequi aut de novo intentare -coram reverendissimo domino Maurianne episcopo et principe seu reverendo -domino generali ejus Vicario et Officiali contra Animalia ad formam -muscarum volantia coloris viridis communi voce appellata Verpillions seu -Amblevins facit constituit elegit et creavit certum ac legitimum -procuratorem totius dicte communitatis et substituit vigore sui -scindicatus de quo fidem faciet egregium Petremandum Bertrandi causidicum -in curiis civitatis Maurianne presentem et acceptantem ad fines coram -eodem reverendissimo Episcopo et ejus Vicario generali comparendi et -faciendi quicquid circa negotiis ejusdem cause spectat et pertinet et -prout ipse scindicus facere posset si presens et personaliter interesset -cum electione domicillii et ceteris clausulis relevationis ratihabitionis -et aliis opportunis suo juramento firmatis subque obligatione et hypotheca -bonorum suorum et dicte communitatis que conceduntur in bancho die et anno -premissis. - -ORDINATIO - -Anno domini millesimo quinquagesimo octuagesimo septimo et die sabatti -decima sexta maii comparuerunt judicialiter coram nobis Vicario generali -Maurianne prefato Franciscus Ameneti conscindicus Sancti Julliani cum -egregio Petremando Bertrandi ejus procuratore producens testimoniales -constitutionis facte eidem egregio Bertrandi die tertia decima aprilis -proxime fluxi petit sibi provideri juxta supplicationem nobis porrectam -parte scindicorum et communitatis Sancti Julliani exordiente _Divino -primitus implorato auxilio_ signatum _Franciscus Faeti_ contra Animalia -bruta ad formam muscarum volantia nuncupata Verpillions producens etiam -acta et agitata superioribus annis coram predecessoribus nostris maxime de -anno 1545 et die vicesima secunda mensis aprilis unacum ordinatione nostra -lata octava maii millesimo quingentesimo octuagesimo sexto et ne contra -Animalia ipsis inauditis procedi videatur petunt sibi provideri de -advocato et procuratore pro defensione si quam habeant aut habere possent -dictorum Animalium se offerentes ad solutionem salarii illis per nos -assignandi. Inde et nos Vicarius generalis Maurianne ne Animalia contra -que agitur indeffensa remaneant deputamus eisdem pro procuratore egregium -Anthonium Fillioli licet absentem cui injungimus ut salario moderato -attenta oblatione conquerentium qui se offerunt satisfacere teneatur et -debeat ipsa Animalia protegere et defendere eorumque jura et ne de -consilio alicujus periti sint exempta ipsis providemus de spectabili -domino Petro Rembaudi advocatum (_sic_) cui similiter injungimus ut debeat -eorum jura defendere salario moderato ut supra. Quamquidem deputationem -mandamus eis notifficari et ipsis auditis prout juris fuerit ad ulteriora -providebitur. Quo interim visa per nos quadam ordinatione fuit fieri -certas processiones et alias devotiones in dicta ordinatione declaratas -quas factas fuisse non edocetur ideo ne irritetur Deus propter non -adempletionem devotionum in ipsa ordinatione narratarum dicimus ipsas -devotiones imprimis esse fiendas per instantes et habitatores loci pro quo -partes agunt quibus factis postea ad ulteriora procedemus prout juris -fuerit decernentes literas in talibus necessarias per quas comittimus -curato seu vicario loci quathenus contenta in dicta ordinatione in prono -ecclesie publice declarare habeat populumque monere et exortari ut illas -adimpleant infra terminum tam breve quam fieri poterit et de ipsis -attestationem nobis transmittere. Datum in civitate Sancti Johannis -Maurianne die anno permissis. - -MEMORIALE - -Anno premisso et die trigesima mensis maii comparuerunt judicialiter coram -nobis Vicario generali Maurianne prefato honestus Franciscus Ameneti -conscindicus jurat venisse cum egregio Petremando Bertrandi ejus -procuratore producit et reproducit supplicationem nobis porrectam -retroacta et agitata contra eadem Animalia maxime designata in memoriali -coram nobis tento decima sexta maii literas eodem die curato Sancti -Julliani directas unacum attestatione signata _Romaneti_ qua constat -clerum et incolas dicti loci proposse satisfecisse contentis in eisdem -literis ad formam ordinis in ipsis designato petit sibi juxta et in actis -antea requisita provideri et alia uberius juxta cause merita et inthimari -egregio Fillioli procuratori ex adverso. Hinc egregius Fillioli procurator -dictorum Animalium brutorum petit communicationem omnium et singularum -productionum ex adverso cum termino deliberandi defendendi et participandi -cum domino advocato premisso. Indi et nos Vicarius generalis Maurianne -prefatus communicatione superius petita concessa partibus premissis diem -assignamus sabatti proximi sexta instantis mensis junii ad ibidem -judicialiter coram nobis comparandum et tunc per dictum egregium Fillioli -nomine quo supra quid voluerit deliberare et defendere deliberandum et -defendendum. Datum in civitate Maurianne die et anno premissis. - -R. D. GENERALI VICARIO ET OFFICIALI EPISCOPATUS MAURIANÆ - -Divino primitus implorato auxilio humiliter exponunt syndici totius -communitatis seu parrochie Sancti Julliani cæterique homines ac sua -interesse putantes et infrascriptis adherere cupientes quod cum alias ob -forte peccata et cætera commissa tanta multitudo bruti animalis generis -convoluntium vulgo tamen vocabulo Amblevini seu Verpillion dicti per -vineas et vinetum ipsius parrochie accessisset damna quamplurima ibi -perpetrantis folia et pampinos rodendo et vastando ut ex eis nulli saltem -pauci fructus percipi poterant qui juri cultorum satisffacere possint et -quod magis et gravius erat illa macula ad futura tempora trahendo vestigia -nulli palmites fructus afferentes produci poterant illi autem flagitio -antecessores amputare viam credentes prout divina prudentia erat credendum -porrectis precibus adversus eadem Animalia et in eorum defensoris -constituti personam debitis sumptis informationibus ac aliis -formalitatibus necessariis prestitis sententia seu ordinatio prolata -comperitur cujus et divinæ potentiæ virtute præcibus tamen et officiis -divinis mediantibus illud flagitium et inordinatus furor prefatorum -brutorum Animalium cessarunt usque ad duos vel circa citra annos quod -veluti priscis temporibus rediere in eisdem vineis et vineto et damna -inextimabilia et incomprehensibilia afferre ceperunt ita ut pluribus -partibus nulli fructus sperantur percipi possetque in dies deterius -evenire culpa forte hominum minus orationibus et cultui divino vacantium -seu vota et debita non vere et integre reddentium que tamen omnia divinæ -cognitioni consistit et remittenda veniunt eo quod Dei arcana cor hominis -comprehendere nequit. - -Nihilominus cum certum sit gratiarum dona diversis diversimode fore -collata hominibus et potissimum ecclesiastico ordini ut in nomine Jesu et -virtute ejus sanctissime passionis possit in terris ligare solvere et -flectere iterum ad R. V. recurrentes prius agitata reassumendo et quatenus -opus fuerit de novo procedendo petunt in primis procuratorem aut -defensorem ipsis Animalibus constitui ob defectum præcedentis vita functi -quo facto et ut de expositis legitime constet debeatis inquisitiones et -visitationes locorum fieri per nos aut alium idoneum commissarium -cæterasque formalitates ad hæc opportunas et requisitas exerceri ipso -defensore legitime vocato et audito nec non aliter prout magis equum -visum et compertum de jure extiterit procedere dignetur ad expulsionem -dictorum Animalium via interdicti sive excommunicationis et alia debita -censura ecclesiastica et justa ipsius sanctas constitutiones ad quas et -divinæ clementiæ et mandatis suorum ministrorum se parituros offerunt et -submittunt omni superstitione semota quod si stricta excommunicatione -processum fuerit sunt parati dare et prestare locum ad pabulum et escam -recipiendos ipsis Animalibus quemquidem locum exnunc relaxant et declarant -prout infra et alias jus et justitiam ministrari omni meliori modo -implorato benigno officio. - - FRAN. FAETI - -Ego subsignatus curatus Sancti Julliani attestor quomodo sacro die -Penthecostes decima septima mensis maij anno domini millesimo -quingentesimo octuagesimo septimo ego accepi de manibus sindicorum -mandatum exortativum sive ordinationem R{di} generalis Vicarii et -Officialis curie diocesis Maurianne datum in civitate Sancti Johannis -decima sexta mensis may anno quo supra quod cum honore et reverentia juxta -tenorem illius die lune Penthecostes decima octava may in offertorio magne -misse parochialis populo ad divina audienda congregato publicavi idem -populum michi commissum ad contritionem suorum peccaminum et ad devotionem -juxta meum posse et serie monui processiones missas obsecrationes et -orationes in predicto mandato contentas per tres dies continuos videlicet -vicesima vicesima prima vicesima secunda predicti mensis cum ceteris -presbiteris feci in quibus processionibus scindici cum parrochianis -utriusque sexus per majorem partem circuitus vinearum interfuerunt -deprecantes Dei omnipotentis clementia pro extirpatione brutorum Animalium -predictas vineas atque alios fructus terre devastantium vulgariter -nuncupatas (sic) Verpilions seu Amblavins in predicto mandato mentionata -sive nominata in quorum fidem ad requisitionem dictorum scindicorum qui -hanc attestationem petierunt quam illis in exonus mei tradidi hac die -vicesima quarta may anno quo supra. - - ROMANET - -Franciscus de Crosa Canonicus et Cantor ecclesie cathedralis Sancti -Johannis Maurianne in ... et temporalibus episcopatus Maurianne generalis -Vicarius et Officialis dilecto sive vicario Sancti Julliani s ... in -domino. Insequendo ordinationem per nos hodie date presentium latam in -causa scindicorum Sancti Julliani agentium contra Animalia bruta ad formam -muscarum volantia coloris viridis nuncupata Verpillions supplicata per -quam inter cetera contenta in eadem dictum et ordinatum extitit devotiones -et processiones fieri ordinatas per ordinationem latam ab antecessore -nostro die octava maii anni millesimi quingentesimi quadragesimi sexti in -eadem causa in primis et ante omnia esse fiendas per instantes et -habitatores dicti loci Sancti Julliani. Igitur vobis mandamus et -injungimus quathenus die dominico Penthecostes in prono vestra ecclesie -parrochialis contenta in dicta ordinatione declarare habeatis populumque -monere et extortari ut illa adimpleant infra terminum tam breve quod fieri -poterit et de ipsis attestationem nobis transmittere. Tenor vero dicte -ordinationis continentis devotiones sequitur et est talis. - -Quia licet per testes de nostri mandato et commissarium per nos deputatum -examinatos apparet Animalia bruta contra que in hujusmodi causa parte -prefatorum supplicantium fuit supplicatum intulisse plura dampna -insupportabilia ipsis supplicantibus que tamen dampna potius possunt -attribuenda peccatis supplicantium decimis Deo omnipotenti de jure -primitivo et ejus ministris non servientium et ipsum summum Deum -diversimode eorum peccatis non (_sic_) offendentium quibus causis -causantibus dampna fieri supplicantibus predictis non ut fame et egestate -moriantur sed magis ut convertantur et eorum peccata deffluant ut tandem -abundantiam bonorum temporalium consequantur pro substentatione eorum vite -vivere et post hanc vitam humanam salutem eternam habeant. Cum a principio -ipse summus Deus qui cuncta creavit fructus terre et anime vegetative -produci permiserit tam substentatione vite hominum rationabilium et -volatilium super terram viventium quamobrem non sic repente procedendum -est contra prefata Animalia sic ut supra damnificantia ad fulminationem -censurarum ecclesiasticarum Sancta Sede Apostolica inconsulta sive ab -eadem ad id potestatem habentibus superioribus nostris sed potius -recurrendum ad misericordiam Dei nostri qui in quacumque hora ingenuerit -peccata propitius est ad misericordiam. Ipsi quamobrem causis premissis et -alliis a jure resultantibus pronunciamus et declaramus inprimis fore et -esse monendos et quos tenore presentium monemus et moneri mandamus ut ad -ipsum Dominum nostrum ex toto et puro corde convertantur cum debita -contrictione de peccatis commissis et proposito confitendi temporibus et -loco opportunis et ab eisdem de futuro abstinendi et de cetero debite -persolvendum Deo decimas de jure debitas et ejus ministris quibus de jure -sunt persolvende eidem Domino Deo nostro per meritata sue sacratissime -passionis et intercessione Beate Marie Virginis et omnium Sanctorum ejus -humiliter exposcendo veniam et quibuscumque peccatis delictis et offensis -contra ejus majestatem divinam factis ut tandem ab afflictionibus -prefatorum Animalium liberare dignetur et ipsa Animalia loca non it ... -ipsis supplicantibus ceterisque christianis transferre et al ... secundem -ejus voluntatem et aliter exting ......... ..... eisdem supplicantibus uno -die dominico in offertorio ......... ut ipso die dominico ...... -supplicantibus ...... ......... per circuitum vinearum ejusdem parrochie -...... et per loca cum aspersione aque benedicte pro effugandis prefatis -Animalibus tribus diebus immediate sequentibus significationem et -notificationem sic ut supra fiendas quibus processionibus durantibus -decantari et celebrari mandamus tres missas altas ante sive post quamlibet -earum processionum ad devot ... cleri et populi quarum prima primo die -decantabitur de Sancto Spiritu cum orationibus de Beata Maria. ... _Deus -Deus qui contritorum_ et _A cunctis nos quesumus Domine mentis et -corporis_ etc. et una pro defunctis secundo die decantatis de Beata Maria -Virgine cum orationibus Sancti Spiritus Beate Marie Virginis illis _Qui -contritorum_ et pro deffunctis. In eisdem processionibus supra fiendis -jubemus in eadem ecclesia genibus flexis dici et decantari integriter -_Veni Creator Spiritus_ quo hymno sic finito et dicto verceleto _Emitte -Spiritum tuum et creabuntur_ etc. cum orationibus _Deus qui corda -fidelium_ singulis diebus sic prout supra fiat proces ... decantando -septem psalmos penitentiales cum letaniis suffragii et orationibus inde -sequentibus mandamus moneri supplicantes prout supra ut in eisdem missis -processionibus et devotionibus sic ut supra fiendis ad minus d ... de -qualibet domo devote intersint dicendo eorum Fidem catholicam et alias -devotiones et orationes ...... cum fuerit humiliter et devote preces et -effundendo Domino Deo nostro ut per merita sue sanctissime passionis et -intercessionem Beatissime Virginis Marie et omnium Sanctorum dignetur -expellere ipsa Animalia predicta a prefatis vineis ut de fructus earumdem -non corrodant nec ...... et ibidem supplicantes a cunctis alliis -adversitatibus liberare ut tandem de eisdem fructibus debite vivere -possint et eorum necessitatibus subvenire et semper in omnibusque -glorificare laudare eumdem Dominum et Redemptorem nostrum et in eodem -fidem et spem nostram totaliter cohibenda a devastatione prefatarum -vinearum et nos liberare a cunctis alliis adversitatibus dummodo sic ut -supra ejus mandata servaverimus et hoc absque allia fulminatione -censurarum ecclesiasticarum quas distulimus fulminare donec premissis -debite adimpletis et alliud a prefatis superioribus nostris habuerimus in -mandatis literas quatenus expediat in exequutionem omnium et singulorum -premissorum decernentes ...... Post ...... insertionem dicte ordinationis -dicti scindici Sancti Julliani petierunt sibi concedi literas quas -concedimus datas in civitate Sancti Johannis Maurianne die decima sexta -mensis maii millesimo quingentesimo octuagesimo septimo. - -Franciscus de Crosa Vic.{s} et Off.{s} gen.{lis} Maurianne. - - FAURE - -Per eumdem R. D. Maurianne generalem Vicarium et Officialem. - -(_locus sigilli._) - -MEMORIALE - -Anno premisso et die quinta mensis junii comparuerunt judicialiter coram -nobis Vicario generali Maurianne Franciscus Ameneti consindicus Sancti -Julliani asserens venisse a loco sancti Julliani ad fines remittendi in -manibus egregii Anthonii Fillioli procuratoris Animalium brutorum cedulam -signatam _Rembaud_ producendam pro deffensione dictorum Animalium -quiquidem egregius Fillioli produxit realiter eandem cedulam incohantem -_Approbando_ etc. signatam _Rembaud_ dicens concludens et fieri requirens -pro ut in eadem cedula continetur. Hinc et egregius Petremandus Bertrandi -procurator dictorum sindicorum Sancti Julliani agentium petiit copiam -dicte cedule. Inde et nos Vicarius generalis Maurianne prefatus partibus -premissis diem assignamus veneris proximam duodecimam presentis mensis -junii nisi etc. ad ibidem coram nobis comparendum et tunc per dictum -egregium Bertrandi nomine quo supra quid voluerit deliberare deliberandum -eidem concedendo copiam dicte cedule per eum requisitam. Datum in civitate -Sancti Johannis Maurianne die et anno premissis. - -COPIA CEDULE - -Approbando et in quantum de facta in medium adducendo ea que hoc in -processu antea facto fuerunt et potissimum scedulam productam ex parte -egregii Baudrici procuratoris Animalium signatam _Claudius Morellus_ -egregius Anthonius Fillioli procurator et eo nomine a reverendo domino -Vicario constitutus occasione tuendorum ac deffendendorum Animalium de -quibus hoc in processo agitur ut in actis ad quæ impugn ...... super -relatio habeatur et brevibus agendo ac realiter deffendendo excipit et -opponit ac multum miratur de hujusmodi processu tam contra personas -agentium quam contra insolitum et inusitatum modum et formam procedendi de -eo saltem modo quo hactenus processum fuit maxime cum agitur de -excommunicatione Animalium quod fieri non potest quia omnis excommunicatio -aut fertur ratione contumaciæ _cap. primo_ et ibi Gr. _De sententiis -excommunicationis lib._ 6. at cum certum est dicta animalia in contumacia -constitui non posse quia legitime citari non possunt per consequens via -excommunicationis Agentes uti non possunt nec debent eo maxime quod Deus -ante hominis creationem ipsa Animalia creavit ut habetur Genesi ib. -_Producat terra animam viventem in genere suo jumenta et reptilia et -bestias terre secondum species suas benedixitque eis dicens crescite et -multiplicamini et replete aquas maris avesque multiplicentur super terram_ -quod non fecisset nisi sub spe quod dicta Animalia vita fruerentur tum -quod ipse Deus optimus maximus creator omnium Animalium tam rationabilium -quam irrationabilium cunctis Animalibus suum dedit esse et vesci super -terram unicuique secondum suam propriam naturam certum est et potissimum -plantas ad hoc creavit ut animalibus deservirent est enim ordo naturalis -quod plante sunt in nutrimentum Animalium et ...... quedam in nutrimentum -aliorum et omnia in ...... hominis. Genes: 9: ibi _Quasi olera virentia -tradidi vobis omnia a Deo_ quod dicta Animalia de quibus Adversantes -conqueruntur modum vivendi a legi ordinatum non videtur egredi tum quia -bruta sensu et usu rationis carentia que non secondum legem divinam -gentium canonicam vel civilem sed secondum legem naturæ primordialis qua -Animalia cuncta docuit vivere solo instinctu naturæ vivunt et ut ait -Philosophus _actus activorum non operantur in patienti_ ...... tum quia -jura naturalia sunt immutabilia § _Sed naturalia Instit.: de jur natur. -gent. et civili._ ergo cum dicta Animalia solo instinctu naturæ dicantur -per consequens excommunicanda non veniunt. Et quamvis dicta Animalia -hominibus subjecta esse dicantur ut habetur Ecclesiast: 17. ibi _Posuit -timorem illius super omnem carnem et bestiarum ac volatilium_ non idcirco -adversus talia Animalia licet subjecta uti non debent excommunicatione nec -ullo modo veniunt petita executioni mandanda saltem modo petito presertim -cum ratio et æquitas dicta Animalia non regat. Et licet juribus divino -antiquo civili et canonico promulgatum legitur _Qui seminat metet_ ut -habetur Esai 37 ibi. _In anno autem tertio seminate et mettete et plantate -vineas et commedite fructum earum_ non tamen cequitur (_sic_) quin dicta -Animalia plantis non utantur quia sunt irrationabilia et carentia sensu -neque ea posse dicernere quæ sunt usui hominum destinata vel non -certissimum est quia solo instinctu nature ut supra dictum est vivunt non -idcirco necesse habent Agentes adversus dicta Animalia uti -excommunicatione sed ...... peccata eorum universus populus presertim quem -hujusmodi flagella affligunt et prosequuntur et poenitentiam agat exemplo -Ninivitarum qui ad solam vocem Jone prophete austeriter poenitentiam -egerunt ad mittigandam et placandam iram Dei. Jon. 3. veniat populus et -imploret misericordiam Dei optimi et sic maximi ut sua sancta gratia et -per merita sanctissimæ passionis excessum dictorum Animalium compessere -et refrenare dignetur et hoc modo dicta Animalia e vineis ejicient et non -eo modo quo procedunt. Quibus universis consideratis evidentissime patet -dicta Animalia e vitibus seu e vineis ejicienda non esse attento quod solo -instinctu naturæ vivunt et ita per egregium Anthonium Fillioli eorumdem -Brutorum legittimi actoris fieri instatur et ab ipso petitur ipsum -monitorium requisitum in quantum concernit dicta Animalia revocari et -annullari nec aliquo modo consentiendo quod dictum monitorium eis -concedatur nec etiam aliqui visitationi vinearum ut est conclusum per -Agentes in eorum supplicatione protestando de omni nullitate et hoc omni -meliori modo via jure ac forma salvis aliis quibuscumque juribus ac -deffentionibus competentibus aut competituris humiliter implorato benigno -officio judicis. - - PETRUS REMBAUDUS - -MEMORIALE - -Anno premisso et die duodecima mensis junii comparuerunt judicialiter -coram nobis Vicario generali Maurianne prefato egregius Petremandus -Bertrandi procurator dictorum Agentium petens alium terminum. Hinc et -egregius Anthonius Fillioli procurator dictorum Animalium petiit viam -precludi parti quidquiam ulterius deliberandi et producendi. Inde et nos -Vicarius generalis Maurianne prefatus partibus premissis diem assignamus -veneris proximam decimam nonam presentis mensis nisi etc. ad ibidem -judicialiter coram nobis comparendum et tunc per dictum Bertrandi nomine -quo suppra quid voluerit precise deliberare deliberandum. Datum Maurianne -die et anno premissis. - -MEMORIALE - -Anno premisso et die veneris decima nona mensis junii preassignata -comparuerunt judicialiter coram nobis Vicarium generalem Maurianne prefato -egregius Petremandus Bertrandi procurator Sindicorum Sancti Julliani -Agentium producens cedulam incohantem _Etiam si cuncta_ et signatam -_Franciscus Fay_ dicens concludens et fieri requirens pro ut et -quemadmodum in eadem cedula continetur. - -Hinc et egregius Anthonius Fillioli procurator dictorum Animalium -conventorum petiit copiam dicte cedulæ cum termino deliberandi et -respondendi. - -Inde et nos Vicarius generalis Maurianne prefatus copia prepetita concessa -partibus premissis diem assignamus veneris proximam vigessimam sextam -hujus mensis junii nisi etc. ad ibidem judicialiter coram nobis -comparendum et tunc per dictum Fillioli nomine quo supra quid voluerit -deliberare deliberandum. Datum Maurianne die et anno premissis. - -MEMORIALE - -Anno premisso et die sabatti vigesima septima mensis junii subrogata ob -diem feriatum intervenientem comparuerunt judicialiter coram nobis Vicario -generali prefato Catherinus Ameneti consindicus Sancti Julliani jurat -venisse cum egregio Petremando Bertrandi ejus procuratore producens -realiter cedulam signatam _Fay_ dicens concludens prout in eadem cedula -continetur. Hinc et egregius Fillioli procurator Animalium petens copiam -cedule cum termino deliberandi. Inde et nos Vicarius prefatus copia -prepetita concessa partibus premissis diem assignamus sabbati proximi -quartam instantis mensi jullii nisi etc. ad ibidem judicialiter coram -nobis comprehendum est tunc per dictum egregium Fillioli quid voluerit -deliberare deliberandum. Datum Maurianne die et anno premissis. - -COPIA CEDULÆ - -Etiamsi cuncta ante hominem sint creata ex Genesi non sequitur laxas -habenas concessas fore immo contra ut ibidem colligitur et apud D... in I. -par. q. 26. ar. I. et psal. 8. Corin. 5. hominem fore creatum ac -constitutum ut coeteris creaturis dominaretur ac orbem terrarum in -æquitate et justitia disponeret. Non enim homo contemplatione aliarum -creaturarum habet esse sed contra. Nec reperitur illam dominationem circa -bruta animantia ac eorum respectu suscipere limitationem verum in divinis -cavetur omne genuflecti in nomine Jesu. - -Sed cum circa materiam majores nostri satis scripserint in actis -reassumptis et nihil novi adductum ex adverso inveniatur frustra -resumerentur. Unde inherendo responsis spectabilis domini Yppolyti de -Collo et postquam constat fore satisffactum ordinationi nihil est quod -impediri possit fines supplicatos adversus Animalia de quorum conqueritur -ad quod concluditur ac justitiam ministrari omni meliori modo implorato -benigno officio. - - FRANC FAETI - -MEMORIALE - -Anno premisso et die quarta mensis jullii comparuerunt judicialiter coram -nobis Vicario generali Maurianne prefato egregius Anthonius Fillioli -procurator dictorum Animalium producens cedulam incohantem _Licet multis_ -signatam _Rembaudi_ dicens et concludens prout in eadem cedula continetur -hinc et egregius Petremandus Bertrandi procurator dictorum Agentium petit -copiam cedule cum termino deliberandi. Inde et nos Vicarius generalis -Maurianne prefatus copia prepetita concessa partibus premissis diem -assignamus sabbati proximam undecimam presentis mensis jullii nisi etc. ad -ibidem judicialiter coram nobis comparendum et tunc per dictum egregium -Bertrandi nomine quo supra quid voluerit deliberare deliberandum. Datum -Maurianne die et anno premissis. - -MEMORIALE - -Anno premisso at die quarta jullii comparuerunt coram nobis Vicario -prefato egregius Petremandus Bertrandi procurator Agentium petit alium -terminum. Hinc et egregius Anthonius Fillioli procurator Conventorum -inheret cedulatis suis et fieri petitis super quibus petit justitiam sibi -ministrari. Inde et nos Vicarius generalis Maurianne prefatus partibus -premissis diem assignamus sabbati proximam decimam octavam presentis -mensis jullii nisi etc. ad ibidem judicialiter coram nobis comparendum et -tunc per dictum Bertrandi nomine quo supra quid voluerit deliberare -deliberandum. Datum Maurianne die et anno premissis. - -COPIA CEDULÆ - -Licet multis in locis reperiatur hominem creatum fuisse ut cæteris -Animalibus et creaturis dominaretur non idcirco opus est ut Agentes -adversus dicta Animalia excommunicatione utantur sed via usitata et -ordinaria et præsertim ut dictum est quod dicta Animalia jus naturæ -sequantur quod quidem jus nusquam immitatum (_sic_) reperitur nam jus -divinum et naturale pro eodem sumuntur. Can. I. dist. I. at jus divinum -mutari non potest quod est in preceptis moralibus et naturalibus per -consequens nec jus naturale mutari potest nam jus naturale manat ab -honesto nempe ac ratione immortali et perpetua, at ratio jubet ut dicta -Animalia vivant potissimum hiis nempe plantis que ad usum dictorum -Animalium videntur creata ut supra dictum est ergo Agentes nulla ratione -debent uti via excommunicationis. Igitur ne in causa ulterius progrediatur -potissimum cum cedula pro parte Sindicorum totius communitatis Sancti -Julliani producta signata _Fran: Faeti._ nullam penitus mereatur -responsionem obstante quod nihil novi in dicta cedula propositum -comperitur etiam quod contentis cedulæ parte gregii (egregii) Anthonii -Fillioli procuratorio nomine dictorum Animalium producte mimime sit -responsum idcirco cum omnia que videbantur adducenda ex parte dictorum -Animalium adducta et proposita fuerunt ut ample patet in dicta cedula -superius producta signata: _P. Rembaudus._ ad quam impugnatus semper -relatio habeatur non igitur alia ex parte dictorum Animalium adducenda nec -proponenda videntur presertim ut dictum est quod ratio et equitas dicta -Animalia non regat quapropter egregius Anthonius Fillioli nemine dictorum -Animalium suppra relatorum suoe cedule et fieri recuisitis inhoerendo -concludit super eis jus dici et deffiniri et justiciam sibi in hujusmodi -causa adversam fieri et promulgari implorans benignum officium omni -melliori modo. - - P. REMBAUDUS - -MEMORIALE - -Anno premisso et die decima octava mensis jullii comparuerunt judicialiter -coram nobis Vicario prefato egregius Petremandus Bertrandi procurator -Agentium petens alium terminum. Hinc et egregius Fillioli procurator -dictorum Animalium petit viam precludi parti quidquam ulterius -articullandi et deducendi et inherendo suis cedulatis petit sibi justitiam -ministrari. Inde et nos vicarius generalis Maurianne prefatus de consensu -procuratorum dictarum partium ipsis partibus diem assignamus primam -juridicam post messes ad ibidem coram nobis comparendum et tunc per dictum -egregium Bertrandi nomine quo suppra quid voluerit precise deliberare -deliberandum. - -MEMORIALE - -Anno premisso et die veneris vigesima quarta mensis juli comparuerunt -judicialiter coram nobis Vicario generali Maurianne prefato egregius -Petremandus Bertrandi procurator Sindicorum Agentium produxit -testimoniales sumptas per communitatem Sancti Julliani congregatam coram -visecastellano Maurianne continentes declarationem loci quem offerunt -relaxare et assignare eisdem Animalibus pro eorum pabulo quathenus -indigent ad formam earumdem testimonialium signatarum _Prunier_ adversus -quas petit adverso viam precludi quicquam opponendi et exipiendi et -deffendendi quominus dicta Animalia devastantia non debeant arceri ambigi -cogi et in virtute sancte Dei obedientiæ vineta loci predicti Sancti -Julliani relinquere et in locum assignatum accedere et divertire ne -deimpceps (deinceps) officiant eisdem vineis que sunt usui humano -pernecessariæ et alias ulterius super cause exigentia provideri benignum -officium R. D. V. implorando et ita intimari egregio Fillioli procuratori -ex adverso. - -Quiquidem egregius Fillioli procurator dictorum Animalium petiit copiam et -communicationem dictarum testimonialium cum termino deliberandi et -deffendendi. - -Inde et nos Vicarius generalis Maurianne prefatus copia et communicatione -prepetitis concessis partibus premissis diem assignamus primam juridicam -post ferias messium proxime venturam ad ibidem judicialiter coram nobis -comparendum et hinc per dictum egregium Fillioli nomine quo suppra quid -voluerit deliberare deliberandum. Datum Maurianne die et anno premissis. - -EXTRAICT DU REGESTRE DE LA CURIALLITE DE SAINCT JULLIEN - -Du penultiesme jour du moys de juing mil cinq cent huictante sept. - -Ont comparu pardevant Nous Jehan Jullien Depupet notaire ducal et -Vichastellain pour son Altesse au lieu de Sainct Jullien et Montdenix -honnestes Francoys et Catherin Aimenetz conscindicz dudict lieu maistres -Jehan Modere Andre Guyons Pierre Depupet notaires ducaulx maistre Reymond -Thabuys honnestes Claude Charvin Jehan Prunier Claude Fay Françys Humbert -et Vuilland Duc conseilliers dudict lieu avec des manantz et habitantz -dudit lieu les deux partyes les troys faisantz le tout tous assembles au -son de la cloche au Parloir damon place publicque dudit lieu de Sainct -Jullien au conseil general suyvant la publication d'icelluy faicte -cejoudhuy mattin a lyssue de la parocchielie dudit lieu et au lieu ce fere -accoustume par Guilliaume Morard metral dudict lieu ce a Nous rapportant -disantz les susnommez scindicz comme au proces pas eulx au nom de ladicte -communaulte intenre et poursuyvy contre les Animaulx brutes vulgairement -appelez Amblevins pardevant le Seigneur Reverendissime Evesque et Prince -de Maurianne ou son Official est requis et necessayre syvant le conseil a -eulx donne par le sieur Fay leur advocat de ballier ausdictz Animaulx -place et lieu de souffizante pasture hors les vigniables dudict lieu de -Sainct Jullien et de celle qu'il y en puissent vivre pour eviter de manger -ny gaster lesdictes vignes. A ceste cause ont tous les susnommes et -aultres y assembles delibere leur offrir la place et lieu appelle la Grand -Feisse ou elle se treuvera souffizante pour les pasturer et que le sieur -advocat et procureur diceulx Animaux se veuillent contempter laquelle -place est assize sur les fins dudict Sainct Jullien audessus du village de -Claret jouxte la Combe descendant de Roche noyre passant par le Crosset du -levant la Combe de Mugnier du couchant ladicte Roche noyre dessus la Roche -commencant a la Gieclaz du dessoubz laquelle place sus coufinee centient -de quarent a cinquante sesteries ou environ peuplee et garnye de plusieurs -espresses de boes plantes et feuillages comme foulx allagniers cyrisiers -chesnes planes et aultres arbres et buissons oultre lerbe et pasture qui y -est en asses bonne quantité a laquelle les susnommes au nom de ladicte -communaulte lon offre ny prendre chose que ce soyt moing permettre a leur -sceu y es tre prins et emporte chose que soyt dans lesdictz confins soyt -par gens ou bestes saufz toutteffoys que ou le passaige des personnes y -seroyt necessayre a quelque lieu ou endroit ou lon ne puisse passer par -ledict lieu sans fere aulcung prejudice a la pasture desdicts Animaulx -comme aussi dy pouvoir tirer mynes de colleurs et aultres si alcune en y a -dequoy lesdictz Animaulx ne se peuvent servir pour vivre et par ce que le -lieu est une seure retraicte en temps de guerre ou aultres troubles par ce -quelle est garnye des fontaynes qui aussi servira ausdictz Animaulx se -reservent sy pouvoir retirer au temps susdict et de necessite et de leur -passer contract de ladicte piece aux conditions susdictes tel que sera -requis et en bonne forme et vallable a perpetuyte a tel sy que ou le Sieur -Advocat et Procureur desdicts Animaulx ne ce contenteroyent de ladite -place pour la substentation et vivre diceulx animaux visitation -prealablement faicte si elle y exchoict de leur en baillier davantage -allieurs. Et de laquelle deliberation les susnommes Scindics conselliers -et aultres Nous ont requis acte leur octroyer que leur avons concede -audict lieu du Parloir damont place publique dudict Sainct Jullien en -presence de Pierre Reymond de Montriond Urban Geymen de Sainct Martin de -la Porte et de Janoct Poinct de la paroisse de Montdenix tesmoingtz a ce -requis et a ce dessus assistantz les an et jour que dessus. - - L. PRUMIER - _curial_ - -MEMORIALE CONTINUATIONIS - -Anno premisso et die undecima mensis augusti comparuerunt im banco actorum -judicialium episcopatus Maurianne procuratores ambarum partium qui citra -prejudicium jurium ipsarum partium prorogaverunt et continuaverunt -assignationem datam ipsis partibus usque ad vigesimam presentis mensis -augusti. Datum die et anno premissis. - -ALIA CONTINUATIO - -Anno premisso et die vigesima mensis augusti comparuerunt in eodem bancho -egregius Petremandus Bertrandi et Anthonius Fillioli procuratores partium -lictigantium quiquidem de consensu eorumdem et citra prejudicium jurium -partium et actento transitu armigerorum prorogaverunt assignationem ad -hodie cadentem usque ad diem jovis proximam vigesimam septimam hujus -mensis Augusti. Datum Maurianne die et anno premissis. - -MEMORIALE REASSOMPTIONIS - -Anno premisso et die jovis vigesimam septimam augusti comparuerunt -judicialiter coram nobis Vicario prefato procuratores ambarum partium -quiquidem citra derogationem jurium ipsarum partium prorogaverunt et -continuationem ad hodie cadentem usque ad diem jovis proximam tertiam -instantis mensis septembris. Datum die et anno premissis. - -MEMORIALE AD JUS - -Anno premisso et die tertia mensis septembris comparuerunt judicialiter -coram nobis Vicario generali Maurianne prefato egregius Anthonius Fillioli -procurator Animalium brutorum qui visis testimonialibus productis parte -dictorum Agentium continentibus assignationem loci quem obtulerunt -relaxare et assignare dictis Animalibus pro eorum pabulo dicit eumdem -locum non esse sufficientem nec idoneum pro pabulo dictorum Animalium cum -sit locus sterilis et nullius redditus. Et ampliando omnia et quecumque -agitata in presenti processu parte dictorum Animalium petit Agentes -repelli cum expensis et jus sibi ministrari. Hinc et egregius Petremandus -Bertrandi procurator Scindicorum Sancti Julliani Agentium dicit locum -destinatum et oblatum esse idoneum plenum virgultis et parvis arboribus -prout ex testimonialibus oblationis constat et latius constare quathenus -opus sit offert inherens suis conclusionibus petit jus dici et ordinari ac -pronunciari. Inde et nos Vicarius generalis Maurianne prefatus mandamus -nobis remitti acta ad fines providendi prout juris assignando partes ad -ordinandum. Datum in civitate Sancti Johannis Maurianne die et anno -premissis. - -ORDINATIO IN CAUSA SCINDICORUM SANCTI JULLIANI SUPPLICANTIUM EX UNA - -_contra Animalia bruta ad formam muscarum volantia coloris viridis -Supplicata_ - -Visis actis dictorum Agentium signanter primo memoriali tento in eadem -causa sub die vigesima secunda mensis aprilis anni 1545 coram spectabili -domino Francisco Bonivardi jurium doctori--cedula producta parte egregii -Petri Falconis procuratoris dictorum Animalium incipiente _Ut appareat_ -etc. signata _Claudius Morellus_--tenore supplicationis porrecte parte -dictorum Agentium--tenore monitorii abjecti desuper ipsa supplicatione -sub die 25 aprilis anni predicti millesimi quingentesimi quadragesimi -quinti signati _Daprilis_--ordinatione lata in eadem causa sub die -duodecima mensis junii ejusdem anni--testimonialibus visitationis facte -per egregium Matheum Daprili signatis _Daprili_--cedula producta nomine -ipsorum Animalium incipiente _Visitatio_ et signata _Claudius -Morellus_--allia cedula producta parte dictorum Agentium incipiente _Etsi -rationes_ etc. signata _Petrus de Collo_--tenore ordinationis late in -eadem causa sub die sabatti octava mensis maii anni 1546 signate -Michaelis--memoriali reassumptionis tento sub die tresdecima mensis -aprilis anni presentis 1587--ordinatione lata in eadem causa per -reverendum dominum Franciscum de Crosa antecessorem nostrum sub die decima -sexta mensis maii anni presentis--supplicatione porrecta parte dictorum -Agentium signata _Franciscus Faeti_--litteris obtentis virtute dicte -ordinationis sub die decima sexta dicti mensis--attestatione signata -_Romanet_ sub die 24 ejusdem mensis maii--cedula producta pro parte -dictorum Animalium incipiente _Approbando_ etc. signata _Petrus -Rembaudus_--allia cedula producta parte Agentium signata _Franciscus -Faeti_ incipiente _Etiam si cuncta_ etc.--allia cedula producta pro parte -Animalium incipiente _Licet multis_ etc. signata _Petrus -Rembaudus_--memoriali tento sub die vicesima quarta mensis jullii proxime -fluxi--testimonialibus signatis _Prunier_ sumptis coram Vicecastellano -Maurianne sub die penultima mensis junii anni presentis continentibus -declarationem loci quem dicti Agentes obtulerunt relaxare pro pabulo -dictorum Animalium--memoriale ad jus tento coram eodem domino Vicario -antecessore nostro sub die tertia mensis septembris proxime -fluxi--ceterisque videndis diligenter consideratis. - -Nos Vicarius generalis Maurianne subsignatus antequam ad diffinitivam -procedamus dicimus et ordinamus in primis et ante omnia esse inquirendum -super statu - - loci oblati p.... - quem locum.... - visitandum.... - mensem ut f.... - et nobis rem.... - fuerit provid.... - Mermetus vis.... - generalis.... - in civitate S.... - die decima.... - anno domini.... - octuagesimo sep.... - Petremandi Bertr.... - dictorum Scind.... - et egregii.... - dictorum Animal. - ordinationem.... - acceptandum.... - facit die et.... - -(pro visitatione III flor) - -_locus sigilli._ - -Solverunt Scindici Sancti Julliani incluso processu Animalium sigillo -ordinationum et pro copia que competat in processu dictorum Animalium -omnibus inclusis XVI flor. - -Item pro sportulis domini Vicarii III flor--20 decembre 1587. - -Published by Léon Ménebréa in the appendix to his treatise: _De l'Origine, -de la forme et de l'esprit des jugements rendus au Moyen-âge contre les -Animaux_, Chambery, 1846. Cf. _Mémoires de la Société Royale Académique de -Savoie_, Tome xii. pp. 524-57, where it first appeared. - - * * * * * - -According to M. J. Desnoyers (_Recherches sur la coutume d'exorciser et -d'excommunier les insectes et autres animaux nuisibles à l'agriculture_, -p. 15), it is still the custom, in Provence, Languedoc, le Bordelais, and -other provinces of France, for the peasants to ask the country curates for -prayers, sprinklings with holy water, consecrated boughs, and -extraordinary processions, for the purpose of expelling noxious insects -from the vineyards and warding off disease from the grapes and the -silkworms. These ceremonies are accompanied with adjurations and -maledictions. In Protestant lands official days of fasting and prayer are -supposed to produce the same results. - -The form of exorcism given by an Antwerp canon, Maximilian d'Eynatten, in -his _Manuale Exorcismorum_, is as follows:--"Exorcizo et adjuro vos, -pestiferi vermes, per Deum patrem omnipotentem [+], et per Jesum Christum -[+] filium ejus Dominum nostrum, et Spiritum Sanctum [+] ab utroque -procedentem, ut confestim recedatis ab his campis, pratis, hortis, vineis, -aquis, si Dei providentia adhùc vitam vobis indulgeat, nec amplius in eis -habitetis, sed ad illa ac talia loca transeatis, ubi nullis Dei servis -nocere poteritis. Vobis, si per maleficium diabolicum hic estis, pro parte -divinae majestatis, totius curiae coelestis, necnon ecclesiae hic adhùc -militantis, impero, ut deficiatis in vobisipsis, ac decrescatis, quatenus -reliquiae de vobis nullae reperiantur, nisi ad gloriam Dei et ad usum et -salutem humanum conducibiles. Quod praestare dignetur qui venturus est -judicare viros et mortuos et saeculum per ignem, Resp.--Amen." _Thesaurus -Exorcismorum, Coloniae_, 1626, p. 1204. - - -B - -II[4] - -DE L'EXCELLENCE DES MONITOIRES - -PAR GASPARD BAILLY - -Il ne favt pas mépriser les Monitoires, veu que c'est vne chose grandement -importante, portant auec soy le glaiue, le plus dangereux dont nostre Mere -sainte l'Eglise se sert, qui est l'Excommunication, qui taille aussi bien -le bois sec que le verd, n'épargnant ny les viuans, ni les morts; et ne -frappe pas seulement les Creatures raisonnables, mais s'attache aux -irraisonnables, tels que sont les animaux. Les exemples en sont fréquens, -pour preuue de cette verité. Car on a veu en plusieurs endroits qu'on a -excommunié les bestioles et insectes, qui apportoient du dommage aux -fruits de la terre, et obeïssans aux commandemens de l'Eglise se -retiroient dans le lieu ordonné par la sentence de l'Euesque qui leur -formoit leur procès. Au Siecle passé, il y auoit telle quantité -d'Anguilles dans le Lac de Geneue, qu'elles gastoient tout le Lac: De sort -que les Habitans de la Ville et enuirons, recoururent à l'Euesque pour -les Excommunier, ce qu'ayant esté fait, le Lac fut deliuré de ces -animaux. - -Du temps de Charles Duc de Bourgogne fils de Philippe le Bon, il y eut -telle quantité de Sauterelles en Bresse, en Italie qu'elles mirent presque -la famine dans tout le Mantoüan, si on n'y eût apporté du secours par -l'Excommunication, et de ce nous parle Altiat dans ses Emblémes, sous -l'intitulation _nihil reliqui_. - - _Scilicet hoc deerat post tot mala denique nostris, - Locustæ vt raperent, quidquid inesset agris. - Uidimus innumeras Euro Duce tendere turmas; - Qualia non Athilæ, Castrave Cersis erant. - Hæ fænum milium farra omnia consumpserunt; - Spes in Augusto est, stant nisi vota super._ - -On raconte en la vie de S. Bernard, qu'il se leua vne si grande quantité -de Mouches, d'vne Eglise qu'on auoit basti à Loudun, que par le myen du -bruit qu'elles faisoient, elles empéchoient à ceux qui entroient de prier -Diev, ce que voyant le S. Personage il les Excommunia, de sorte qu'elles -tomberent toutes mortes ayant couuert le paué de l'Eglise. - -Nous lisons qu'en l'année 1541, il y eut vne telle quantité de Sauterelles -en Lombardie, qui tomberent d'vne nuëé; qu'ayant mangé les fruits de la -terre, elles causerent la famine en ces lieux-la. Elles estoient longues -d'vne doigt, grosse teste, le ventre remply de vilenie et ordure; -lesquelles estant mortes infecterent l'Air de si mauuaises odeurs, que les -Courbeaux et autres animaux carnassiers ne les pouuoient supporter. - -On dit aussi qu'en Pologne il y eut aussi telle quantité de ces animaux au -commencement sans aisles, et apres ils en eurent quatre, qu'ils couuroient -deux mille, et d'vne coudée d'auteur, et tellement épaisses qu'en volant -elles leuoient la veüe de la clarté du Soleil, ces animaux firent un -dégat non-pareil aux biens de la terre, et ne purent estre chassés par -autre force ny industrie, que par la malediction Ecclesiastique. - -Saint Augustin raconte au Liure de la Cité de Dieu, Chap. dernier, qu'en -Afrique il y eut telle quantité de Sauterelles, et si prodigieuses, -qu'ayans mangé tous les fruits, feüiles, et écorces des arbres iusques à -la racine, elles s'éleuerent comme vne nuëe; et tombées en la Mer, -causerent vne peste si forte, qu'en vn seul Royaume il y morut huit cens -mille Habitans. - -Du temps de Lotaire troisième Empereur apres Charlemagne, il y eut dans la -France des Sauterelles en nombre prodigieux, ayans six aisles auec deux -dents plus dures que de pierre, qui couurirent toute la terre, comme de la -neige, et gasterent tous les fruits, arbres, blé, et foins, et tels -animaux ayans esté jettés à la Mer; il s'ensuiuit vne telle corruption en -l'Air, que la peste rauageât grande quantité de monde en ce pays là. Voilà -quantité d'exemples quo nous font voir le dommage que nous apportent ces -bestioles et insectes. Maintenant voyons comme on leur forme leur procés -afin de s'en garantir par le moyen de la malédiction que leur donne -l'Eglise. - -Premièrement, sur la Requeste presentée par les Habitans du lieu qui -souffrent le dommage, on fait informer sur le dégat que tels animaux ont -fait, et estoient en danger de faire, laquelle information rapportée, le -Juge Ecclesiastique donne vn Curateur à ses bestioles pour se présenter en -jugement, par Procureur, et là deduire toutes leurs raisons, et se -defendre contre les Habitans qui veulent leur faire quitter le lieu, où -elles estoient, et les raisons veuës et considerées, d'vne part et d'autre -il rend sa Sentence. Ce que vous verrez clairement par le moyen du -plaidoyer suiuant. - -_Requeste des Habitans_ - -Svpplie hvmblement N. Exposans comme riere le liieu de N. il y a quantité -de Souris, Taupes, Sauterelles et autres animaux insectes, qui mangent les -blés, vignes et autres fruits de la terre, et font vn tel dégat aux blés, -et raisins qu'ils n'y laissent rien, d'où les pauures supplians souffrent -notable prejudice, la prise pendante par racine estant consommée par ces -animaux, ce qui causera vne famine insupportable. - -Qui les fait recourir à la Bonté, Clemence et Misericorde de Dieu, à ce -qu'il vous plaise faire en sorte que ces animaux ne gastent, et mangent -les fruits de la terre qu'il a pleu à Dieu d'enuoyer pour l'entretient des -hommes, afin que les supplians puissent vacquer, auec plus de deuotions au -seruice Diuin, et sur ce il vous plaira pouruoir. - -_Plaidoyer des Habitans_ - -Messievrs, ces pauures Habitans qui sont à genouy les larmes à l'oeil, -recourent à votre Iustice, comme firent autre-fois ceux des Isles Maiorque -et Minorque, qui enuoyerent vers Aug. Cesar pour demander des Soldats, -afin de les defendre, et exempter du rauage que les Lapins leur faisoient: -vous aués des armes plus fortes que les Soldats de cette Empereur pour -garantir les pauures supplians de la faim et necessité de laquelle ils -sont menacés, par le rauage que font ces bestioles, qui n'épargnent ny -blé, ny vignes; rauage semblable à celuy que faisoit vn Sanglier, qui -gasta toutes les Terres, Vignes, et Oliuiers du Royaume de Calidon, dont -parle Homere dans le premier Liure de son Hiliade, ou de ce Renard qui fut -enuoyé par Themis à Thebes, qui n'épargnoit ny les fruits de la terre, ny -le bestail attaquant les Paysans mesmes. Vous sçauez assez les maux que -raporte la faim, vous aués trop de douceur, et de Iustice pour les laisser -engager dans cette misere qui contraint à s'abandonner à des choses -illicites, et cruelles, _nec enim rationem patitur, nec vlla æequitate -mitigatur: nec prece vlla flectitur esuriens populus_: Témoins les Meres -dont il est parlé au quatrième des Roys, qui pendant la famine de Samarie, -mangerent les enfans, l'une de l'autre. _Da filium tuum, vt comedamus -hodie, et filium meum comedimus cras: Coximus ergo filium meum, et -comedimus. Quid turpe non cogit fames, sed nihil turpe, nihilve, vetitum -esuriens credit, sola enim cura est, vt qualicumque sorte iuuetur._ La -mort qui vient par la famine est la plus cruelle entant qu'elle est pleine -de langueurs, débilités et foiblesses de coeur, qui sont autant de -nouuelles, et diuerses especes de mort. - - _Dura quidem miseris, mors est, mortalibus omnis, - At perijsse fame, Res vna miserrima longè est._ - -Et Auian Marcellin dit, _Mortis grauissimum genus, et vltimum malorum fame -perire_. Ie crois que vous aurés compassion, de ce pauuve Peuple, si on -vous le represente, par aduance en l'estat qu'il serait reduit si la faim -l'accabloit. - - _Hirtus erat crinis, cana lumina, pallor in ore, - Labia incana siti, scabri rubigine dentes. - Dura cutis, per quam spectari viscera possunt. - Ossa sub incuruis extabant arida lumbis; - Ventus erat, pro ventre locus._ - -Les Gabaonistes, reuestus d'habits dechirés, et des visages affamés, auec -de contenances toutes tristes, firent pitié et compassion au grand -Capitaine Iousë, et en cét estar obtiendrent grace et misericorde. - -Les Informations et visites qui ont esté faites par vos commandements, -vous instruisent suffisamment du dégat que ces animaux ont fait. Ensuite -dequoy on a fait les formalités requises et necessaires, ne restant plus -maintenant que d'adjuger les fins et conclusions prises par la Requeste -des demandeurs, qui sont ciuiles et raisonnables, sur lesquelles il vois -plaira de fairé reflection, et à cét effet leur enioindre de quitter le -lieu et se retirer dans la place qui leur sera ordonnées en faisant les -execrations requises et necessaires, ordonnées par nostre Mere Sainte -l'Eglise, à quoy les pauures demandeurs concluent. - -_Plaidoyer pour les Insectes_ - -Messievrs, dépuis que vous m'aués choisi pour la defense ces pauures -bestioles, il vois plaira que je remontre leur droit, et fasse voir que -les formalités, qu'on a faites contre elles, sont nulles: m'étonnant fort -de la façon qu'on en vse, on donne des plaintes contre elles, comme si -elles auoient commis quelque crime, on fait informer du dégat qu'on -pretend qu'elles ayent fait, on les fait assigner par-deuant le Juge pour -respondre, et comme on sçait qu'elles sont muettes, le Juge voulant -suppleer à ce defaut, leur donne vn Aduocat, pour representer en Justice -les raisons qu'elles ne peuuent deduire; et parceq; Messieurs, il vous a -pleu de me donner la liberté de parler pour les pauures animaux, je diray -pour leur defence en premier lieu. - -Qve l'adiovrnement laxé contr'elles est nul comme laxé contre des bestes, -qui ne peuuent, ny doiuent se presenter en jugement; la raison est, que -celuy qu'on appelle, doit estre capable de raison, et doit agir librement, -pour pouuoir connoitre vn delict. Or est-il que les animaux estans priués -de cette lumiere qui a esté donnée au seul homme, il faut conclurre par -necessaire consequence, que telle procedure est nulle; cecy est tiré de la -Loi premieree, _ff. si quadrupes, pauper feciss. dicat_; et voyci les -mots. _Nec enim potest animal, iniuriam fecisse, quod sensu caret._ - -La seconde raison est, que l'on ne peut appeller personne en jugement sans -cause; car autrement celuy qui fait adjourner quelqu'vn sans raison, il -doit subir la peine portée sous le tiltre des instituts _de poen. tem. -litig._ Mais ces animaux ne sont obligés par aucune cause, ny en aucune -façon, _non tenentur enim ex contractu_, estans incapables de contracter, -_neque ex quasi contractu, neque ex stipulatione, neque ex pacto_, moins -_ex delicto, seu quasi_; parce que comme il a esté dit cy-deuant, pour -commettre vn crime, il faut estre capable de raison, qui ne se rencontre -pas aux animaux, qui sont priués de son vsage. - -De plus dans la Iustice, on ne doit rien faire qui ne porte coup, la -Iustice en cela imitant la Nature; laquelle, comme dit le Philosophe, ne -fait rien mal à propos, _Deus enim, et Natura nihil operantur frustra_. Je -laisse à penser quest-ce qu'on pretend de faire ayant adjourné ces -bestioles, elles ne viendront pas respondre; car elles sont muettes, elles -ne constitueront pas des Procureurs, pour defendre leur cause, moins leur -donneront des memoires, pour deduire en jugement, leur raison: Car elles -sont priuées de raisonnement, en sorte que tel adjournement ne pouuant -auoir aucun effect, est nul. Si donc l'adjournement qui est la base de -tous les actes judiciels est nul, le reste comme en dependant, ne pourra -subsister _cum enim principalis causa non consistat, neque ea quæ -consequuntur locum habent_. - -On dira peut-estre que si bien tels animaux, ne peuuent constituer vn -Procureur, pour la defense de leur droict, et instruction de leur cause -que le Juge de son office le peut faire, et partant que le fait du Juge, -est le fait de la partie. A cela on respond qu'il est vray lors qu'il le -fait selon la disposition du droict, _In administratione suæ -iurisdictionis_, mais non pas en ce cas, où la partie n'en pouuait -constituer, le Juge aussi, ne le peut faire, cecy est décidé par la glose -de la Loy 2 _ff. de administrat. res ad Civit. pertinent_, et pour preuue -de cette proposition faite à propos L'axiaume qui dit _quod directè fieri -prohibetur, per indirectum concedi non debet, cap. tuae de procuratoribus, -gloss. c. 1. de consanguinibus, et affinibus_. Mais ce que je treuue plus -estrange, on pretend faire prononcer contre ces pauures animaux vne -Sentence d'Excommunication, d'Anathema et malediction, et à quel sujet -vser contre des bestioles qui sont sans defense, du plus rigoureux glaiue -que l'Eglise aye en sa main, qui ne punit et ne châtie que les Criminels; -ces animaux estans incapables de faire faute, ni peché, parce que pour -pecher il faut auoir la lumiere de la raison laquelle dicernant le bien -d'auec le mal, nous monstre ce qu'il faut suiure, et ce qu'il faut fuir, -et de plus il faut auoir la liberté de prendre l'vn et laisser l'autre. - -On vovdra peut-estre dire qu'elles ont manqué en ce qu'elles ne se sont -presentées ayant esté adjurnées, et partant que la Contumace et defaut -estant vn crime, on peut faire rendre contre elles Sentence Contumaciale, -à cause de leur desobeïssance: Mais à cela on respond qu'il ny a point de -Contumace, ou il n'y a point d'adjournement, ou du moins qui soit valable -_quia paria sunt non esse citatum, vel non esse legitimè citatum, ita dd. -communiter Bartol., in l. ea quae C. quomodo_, etc. - -De plus, si on prend garde à la définition de l'Excommunication, on verra -qu'on ne peut prononcer telle Sentence contre ces animaux: car -l'Excommunication est dite _extra Ecclesiam positio, vel è qualibet -communione, vel è quolibet legitimo actu separatio_. Tellement que tels -animaux ne peuuent estre dechassés de l'Eglise, n'y ayans jamais esté, -d'autant qu'elle est pour les hommes qui ont l'ame raisonnable, non pas -pour les brutes, qui ne sont doüées d'aucune raison, et l'Apostre S. Paul -_ad Corinth._ 5 dit _quòd de iis quae foris sunt nihil ad nos quoad -Excommunicationem, quia Excommunicare non possumus_, l'Excommunication -_afficit animam non corpus, nisi per quandam consequentiam, cuius Medicina -est_, cap. 1, _de sentent. Excomm. in 6._ C'est pourquoy l'ame de ces -animaux, n'estant immortelle, elle ne peut estre touchée par telle -Sentence, _quae vergit in dispendium aeternae salutis_. - -L'autre raison est, _quòd facienti actum permissum non imputatur, id quod -sequitur ex illo, licét consecutiuum sit repugnans statui_ suo cap. _de -occidendis_ 23 q. 5 cap. _sicut dignum extra de homicid_. Ces animaux font -vn acte permis mesme par le droit Diuin. Car il est dit dans la Genese -_fecit Deus bestias terrae iuxta species suas, iumenta, et omne reptile -terrae in genere suo dixitque Deus, ecce dedi vobis, omnem herbam -afferentem semen super terram, et vniuersa ligna, quae habent in -semetipsis sementem generis sui, vt sint vobis in escam; et cunctis -animalibus terrae, omnique volucri coeli, vniversis quae mouentur in -terris, et in quibus est anima viuens; vt habeat ad vescendum_. Que si les -fruits de la terre ont esté faits pour les animaux et pour les hommes, il -leur est permis d'en manger et prendre leur nourriture, aussi Cicéron dit -au premier des Offices _principio generi omnium animantium est à natura -attributum, vt se vitam, corpusque tueantur, quaeque ad vescendum -necessaria sunt inquirant_. Par ces raison on voit qu'ils n'ont commis -aucun delict, ayant fait ce qui leur est permis par le droit Diuin et de -Nature, et par ainsi ils ne peuuent estre punis, ny maudis, _cum etiam -creaturae intellettuali, et rationali delinquenti seu damnum afferenti, eo -quòd secundum solitum facit; non est Angelo licitum maledicere, multo -minùs erit licitum homini_, veu qu'on lit dans l'Epistre de S. Iude, _cum -altercaretur Michaël cum Diabolo de corpore Moysis non fuit ausus -maledicere_ Cap. _Si igitur Michaël_, 23. _q._ 3. S. Thomas 2. 2. _q._ 76. -dit que de donner des maledictions aux choses irraisonnables, estans -Creatures de Dieu s'est peché de blasphemer et de les maudire, les -considérans en eux mesmes, _est otiosum, et vanum, et per consequens -illicitum_. - -Que si toutes ces raisons ne vous touchent, peut-estre cette-cy vous féra -donner les mains, et persuadera à vostre Esprit, qu'on ne peut donner -aucune sentence d'Excommunication contre elles ny jetter aucun Anatheme. -Car prononçant telle Sentence s'est s'en pendre à Dieu, qui par sa justice -le enuoye pour punir les hommes et chastier leurs péchés, _immitamque in -vos bestias agri quae consumant vos, et pecora vestra, et ad paucitatem -cuncta redigant_, pouuant dire maintenant ce que Dieu a dit auant le -Deluge _omnis Caro corrupit viam suam_. Et Ouide en ses Metamorphoses -voyant que le vice auoit pris le haut bout, Triomphant, et faisant des -conquestes par tout, au contraire la vertu estoit abaissée, exilée, et -reduite en tel estat qu'elle ne treuuoit aucune demeure parmy les Hommes. - - _Protinus irrupit venæ prioris in æuum, - Omne nefas, fugere pudor, verùmque fidésque, - In quorum subiere locum, fraudésque, dolùsque. - Insidiæque, et ars, et amor sceleratus habendi, - Uiuitur ex rapto, non hospes ab hospite tutus, - Non socer à genero, fratrum quoquè gratia rara est, - Imminet exitio vir, conjugis, illa mariti - Liuida terribiles miscent aconitæ nouercæ - Filius ante diem, patrios inquirit in annos, - Uita iacet pietas, et virgo cæde madentes. - Ultima Cilestum, Terras Astrea reliquit._ - -Par les quelles raisons on voit, que ces animaux sont en nous -absolutoires, et doiuent estre mis hors de Cour et de Procès, à quoy on -conclud. - -_Replique des Habitans_ - -Le principal motif qu'on a rapporté pour la deffense de ces animaux, est -qu'estans priués de l'vsage de la raison, ils ne sont sommis à aucunes -Loix, ainsi que dit le Chapitre _cum mulier_ 1. 5. q. l. la _l. congruit -in fin_. et la Loix suiuante. _ff. de off. Praesid. sensu enim carens non -subjicitur rigori Iuris Ciuilis._ Toutesfois, on fera voir que telles Loys -ne peuuet militer au fait qui se présente maintenant à juger, car on ne -dispute pas de la punition d'vn delict commis; Mais on tasche d'empescher -qu'ils n'en commettent par cy-après, et partant ce qui ne seroit loisible -à vn crime commis, et permis afin d'empescher _ne crimen committatur_. -Cecy ce preuue par la Loy _congruit_ sus cité, où il est dit qu'on ne peut -pas punir vn furieux et insensé du crime qu'il a commis pendant sa fureur, -parce qu'il ne scait ce qu'il fait, toutesfois on le pourra renfermer et -mettre dans des prisons, afin qu'il n'offence personne et pour faire voir -combien cét Axiome est vray, ie me sers de l'authorité du Chapitre _omnis -vtriusque sexus de poenitent. et remiss._ ou il est dit qu'on peut -deceller ce qu'on a pris si on ne la pas executé, afin d'y rapporter du -remede, cette proposition est confirmée par la glose _in cap. tua nos ext. -de sponsal._ qui dit qui si quelqu'vn s'accuse d'auoir Fiancé une fille, -par parolles de présent; on pourra deceller ce qui a esté dit, afin que le -Mariage se consume. La raison est, qu'ayant espousé telle fille, si on nie -de l'auoir fait, et on refuse d'accomplir le Mariage, _Videtur esse -delictum successiuum, et durare vsque illam acceperit, vt ergo tali -delicto obuietur_. Il este loisible de publier ce qu'on a pris -secretement Estant vray par les raisons deduites qu'on a peu adjourner, -tels animaux, et que l'adjournement est valable, d'autant qu'il est fait -afin qu'ils ne rapportent du dommage d'ores en auant, non pas pour les -chastier de celuy qu'ils ont fait. Il reste maintenant de respondre à ce -qu'on a aduancé à sçauoir que tels animaux ne peuuent estre Excommuniés, -Anathematisés, maudis ny execrés; à cela il semble que se serait doubter -de la puissance que Dieu a donné à l'Eglise, l'ayant fait Maitresse de -tout l'Vnivers, comme sa chere Espouse, de qui on peut dire, auec le -Psalmiste, _omnia subiecisti sub pedibus ejus, oues, et boues et omnia quæ -mouentur in aquis_, et estant conduite par le S. Esprit, ne fait rien que -sagement, et s'il y a chose où elle doiue monstrer son pouuoir, c'est à la -Conservation du plus parfait ouurage de son Espoux; à sçauoir de l'Homme, -qu'il a fait à son Image et semblance, _faciamus hominem, ad imaginem, et -similitudinem nostram_ et luy a donné le Gouuernement de toutes les choses -crées _crescite et multiplicamini et dominamini piscibus maris, -volatilibus coeli, et omnibus animantibus Coeli_; Aussi Pline en son Liure -premier de l'Histoire naturelle dit _quod causâ hominis, videtur cuncta -alia genuisse natura_. Les Jurisconsultes sont d'accord, _quod hominis -gratia, omnes fructus à natura comparati sunt, l. pecudum. ff. de vsur. et -§. partus ancillarum. instit. de rer. diuis._ et Ouide descriuant -l'excellence de l'Homme parle de la sorte, - - _Pronaque, cum spectent animalia cæetera terras - Os homini sublime dedit, cælumque tueri - Iussit, et erectos ad sidera tollere vultus._ - -et vn autre Poëte, - - _Nonne vides hominem, vt Celsos ad sidera vultus - Sustulerit Deus, ac sublimia finxerit ora. - Cum pecudes, volucrumque genus, formasque ferarum, - Segnem, atque obscænam, passuri strauisset in aluum._ - -Picus Mirandulanus, en vne de ses Oraison parlant de la grandeur de -l'Homme dit _hominem tantoe excellentiae, ac sublimitatis esse, vt in se -omnia continere dicatur, vti Deus, sed diuersimodè, Deus enim omnia in se -continet, vti omnium medium principium, homo verò, in se omnia continet, -vti omnium medium, quo fit, vt in Deo sint omnia meliore nota, quàm in -seipsis, in homine inferiora nobiliori sint conditione, superiora autem -degenerent sicut aër, ignis, aqua et terra per verissimam proprietatem -naturoe suoe, in crasso hoc, et terreno, hominis corpore, quo nos videmus, -hinc etenim nulla creata substantia seruire dedignatur, hinc Terra, et -Elementa, huic bruta præesto sunt, famulantur, hinc militat cælum, hinc -salutem bonumque procurant Angelicoe mentes_. - -Et se seroit vne chose, si j'ose dire hors de raison, que celuy pour qui -la terre produit tous ces fruits, en fut priué, et que de chétifs animaux, -prissent leur norriture, à l'exclusion de l'Homme pour qui ils sont -destinés de Dieu. C'est sur ce sujet qu'il dit _Increpabo pro te locustas -dummodò posueris de fructibus tuis in horrea mea_. - -Et pour responce à ce qu'escrit S. Thomas qu'il n'est loisible de maudire -tels animaux, si on les considere en eux mesmes, on dit qu'en l'espece -qu'on traitte, on ne les considere pas, comme animaux simplement: mais -comme apportans du mal aux Hommes, mangeans et détruisans les fruits qui -seruent à son soutient, et nourriture. - -Mais à quoy, nous arrestons-nous depuis qu'on voit par des exemples -infinis que quantité de saints Personnages, ont Excommunié des animaux -apportans du dommage aux Hommes. Il suffira d'en rapporter vn pour tout, -qui nous est cogneu, et familier, que nous voyons continuellement, à -sçauoir dans la ville d'Aix, où S. Hugon Euesque de Grenoble Excommuniat -les serpens, qui y estaient en quantité à cause des bains chauds de -souffre, et d'Alun, qui faisaient vn grand dommage aux Habitans de ce lieu -par leur piqueures. De sorte que maintenant si bien les Serpens piquent, -quelqu'vn dans le lieu, et confins: Telle piqueure ne fait aucun mal, le -venin de ces bestes estant arresté, par le moyen de telle Excommunication, -que si quelqu'vn est piqué hors de ce lieu par les mesmes Serpens, la -piqueure sera venimeuse et mortelle ainsi qu'on a veu par plusieurs fois. -Ie laisse à part quantité de passages de l'Escripture par lesquels on voit -que Dieu a donné des maledictions aux choses inanimées, et Creatures sans -raison, ainsi qu'on pourra voir au _Leuitic. Ch. 26. et Deutheronome 27. -Genes. 2._ il maudit le Serpent _Maledictus es, inter omnia animantia, et -bestias Terræ_. - -De dire, qu'excommuniant, Anathematisant tels animaux, s'est s'en prendre -à Dieu, qui les a enuoye pour le chastiment des hommes. A cela on respond -que ce n'est pas s'ens prendre à Dieu que de recourir à l'Eglise, et la -prier de diuertir, et chasser le mal, qu'il a pleu à sa Diuine Majesté de -nous enuoyer, à cause de nos fautes et pechés; au contraire c'est vn acte -de Religion que de recourir à elle, lors q'on voit que Dieu leue sa main -pour nous frapper. - -_Conclusion du Procureur Episcopal_ - -Les defenses rapportées par l'Aduocat de ces animaux, contre les -Conclusions prises par les Habitans sont considerables qui meritent qu'on -les examine meurement; car il ne faut pas ietter le carreau -d'Excommunication à la volée, et sans sujet, estant vn foudre qui est si -agissant, que s'il ne frappe celuy contre lequel on le jette, il embrase -celuy qui le lance. Le discours de cét Aduocat est appuyé sur la règle de -Droict, qui dit, _qui iussu iudicis aliquid facit, poenam non meretur_, et -vrayement c'est le Iuge des Iuges, qui ne laisse rien d'impuny, et qui -distribue les peines à l'égal des offences, sans auoir égard à personne, -de qui les jugemens nous sont incognus, _quàm abscondita iudicia Dei, -inuestigabiles viæ ejus_. C'est vne Mer profonde d'ont on ne peut -découurir le fonds. De dire pourquoy il a enuoyé ces animaux, qui mangent -les fruits de la terre: Ce nous sont lettres closes; peut estre veut-il -punir ce Peuple, pour auoir fait la sourde oreille aux pauures qui -demandoient à leurs portes, estant vn Arrest infaillible, que qui fait aux -pauures la sourde oreille, attende de Dieu la pareille. - -Ceux qui donnent l'aumosne sont toûjours sous la protection Diuine, aussi -S. Gierosme dit _non memini me legisse mala morte mortuum, qui libenter -opera charitatis exercuit, habet enim multos intercessores, et impossibile -est, multorum preces non exaudiri_, et S. Ambrojse parlant de ceux qui -donnent l'aumône aux pauures, _si non pauisti necasti, pascendò seruare -poteras_, de mesmes la Loy _de lib. agnoscend._ repute pour homicide celuy -qui denie, et refuse les alimens à ceux qui en ont besoin, et le Prophete -Ezechiel, c. 18. parlant de la recompense, que Dieu a destinée à ceux qui -font du bien aux pauures, _qui panem suum esurienti dederit et nudum -operuerit vestimento, justus est, et vità viuet_; Lesquelles paroles -Eusèbe expliche de la sorte, _fregisti esurienti panem tuum, in Coelo -vitae pane qui Christus est satiaberis, hic peregrinis domus tua patuit, -in domo Angelorum, Ciuis efficieris tu hic trementia membra destijsti, -illic liberaberis ab illo frigore, in quo erit fletus, et stridor -dentium_. - -C'est vn acte de Charité, que d'assister le pauures, _frange esurienti -panem tuum et egenos, vagosque indue in domum tuam, cum videris nudum, -operi eum, et carnem tuam ne despexeri_, dit Iosuë c. 38. aussi la -récompense est asseurée, ainsi qu'escrit S. Mathieu cap. 25. _venite -Benedicti patris mei, possidete paratum vobis regnum à constitutione -mundi; esuriui enim, et dedistis mihi manducare; sitiui, et dedistis mihi -bibere; hospes eram et Collegistis me; nudus eram, et operuistis me, amen -dico vobis quod vni fecistis ex fratribus meis minimis, mihi fecistis_. -C'est vne oeuure de Misericorde d'auuoir compassion de son prochain, ainsi -que dit S. Ambroise _lib. 2. off. cap. 28. hoc maximum Misericordiæ, vt -compatiamur alienis calamitatibus necessitates aliorum, quantum possumus -iuvemus, et plus interdum quàm possumus_ l'Hospitalité est recommandée par -S. Paul _hospitalitatem nolite obliuisci, per hanc enim placuerunt quidam, -Angelis hospitio receptis_, et S. Augustin _disce Christiane sine -discretione exhibere hospitalitatem, ne fortè cui domum clauseris, cui -humanitatem negaueris ipse sit Christus_. L'ordinaire recompence qui suit -l'aumosne est le centuple, _honora Dominum de tua substantia, et de -primitiis omnium fructuorum tuorum de pauperibus, et implebuntur horrea -tua saturitate et vino torcularia tua redundabunt_. Les abismes de la -Diuinité ne s'épuisent jamais, pour donner, et le sage Salomon, _fæneratur -Domino qui miseretur pauperi, et vicissitudinem suam reddet_. S. Paul aux -Corinthièns Chap. 2. parle de la sorte, _qui administrat semen seminanti, -et panem ad manducandum præstabit, et multiplicabit semen suum_. - -Seroit-ce point à cause des irreuerences qu'on commet aux Eglises pendant -le service Diuin, ou sans aucun égard à la presence de Dieu, _conduntur -stupra, tractantur lenocinia, adulteria meditantur, frequentiùs deniquè; -in ædituorum cellulis quòd in ipsis lupanaribus flagrans libido -defungitur_, pour parler auec Tertullien; car c'est là bien souuent où se -donne le mot, où se prennent les assignations, où se lancent les -meschantes oeilliades, _Impudicus oculus, impudici cordis est nuncius_, -dit S. Augustin. Sur tous les arbres et plantes, qui estaient en Ægypte, -le péché était consacré à Harpocrates qui prenait soin du langage qu'on -deuait tenir aux Dieux, parce que le fruit du peché ressemble au coeur, et -la feuille à la langue, inférant de là que ceux qui allaient aux Temples, -deuoient penser saintement honestement, et sombrement parler. - -Numa Pompilius ne volut pas qu'on assistât au culte Diuin par maniere -d'aquit: Mais qu'en quittant toutes choses, on y employat entièrement sa -pensée, comme au principal acte de la Religion, et d'actions enuers les -Dieux, ne voulant pas mesme pendant le Seruice, qu'on entendit parmy les -Ruës aucun bruit, et lors que les Prestres faisoient le Sacrifices et -ceremonies, il y auoit des Sergens qui crioent au Peuple que l'on se tue, -laissant toute autre oeuvre pour estre attentif au Culte. - -Que si les Payens ont esté si exats en leur fausse Religion au Culte de -leurs Idoles, et imaginaires Diuinités, nous qui sommes Chrestiens, et -auons la conoissance du vray Dieu; quel respect ne luy deuons-nous pas -porter dans les Eglises, pendant le S. Sacrifice de la Messe et autres -Offices Diuins. - -Mais si bien Dieu est Iuste iusticier, qui ne laisse rien impuni -toutesfois la Iustice ne tient pas si fort le haut bout, que la -misericorde, n'y treuue place. Il est autant Misericordieux que Iuste, et -s'il enuoit quelques aduersités aux pecheurs et les visite par quelque -coup de fouët: C'est pour les aduertir de faire penitence, par le moyen -de laquelle ils puissent détourner son courroux, et iuste vengeance, et -par ce moyen, ils se puissent reconcilier auec luy, et obtenir ses graces, -et pardon de leurs fautes et pechés. - -Nous voyons ces habitans la larme à l'oeil, qui demandent pardon d'vn -coeur contrit de leurs fautes, ayans horreur des crimes commis par le -passé, et employent l'assistance de l'Eglise pour les soulager en leurs -nécessités, et détourner le Carreau qui leur pend sur la teste, estans -menacés d'vne famine insuportable si vous ne prenés leur droit, et cause -en protection, et faire déloger ces animaux, qui les menaçent d'vne ruine -totale, à quoy nous n'empeschons. - -Concluans à cét effect, qu'il plaise de rendre vostre Sentence d'execution -contre ces animaux, afin que d'ores en auant ils n'apportent du dommage -aux fruits de la terre enjoignans aux Habitans, les Penitences, et -Oraisons, à ce conuenables et accoustumées. - -_La Sentence du Iuge d'Eglise_ - -In nomine Domini amen, visa supplicatione pro parte habitantium loci, -nobis officiali in iudicio facta, aduersus Bronchos, seu Erucas, vel alia -non dissimilia animalia fructus vinearum eiusdem loci à certis annis, et -adhuc hoc praesenti anno, vt fide dignorum Testimonio, et quasi publico -Rumore asseritur, cum maximo incolarum loci, et vicinorum locorum -incommodo depopulantia, vt praedicta animalia per nos moneantur, et -remediis Ecclesiasticis mediantibus compellantur, à territorio dicti loci -abire, visisque diligenter, inspectis causis praedictae supplicationis, -necnon pro parte, dictarum Erucarum, seu animalium, per certos -Conciliarios eosdem, per nos deputatos, propositis et allegatis, audito -etiam super praemissis promotore, ac visâ certâ informatione, et -ordinatione nostra, per certum dictae Curiae, Notarium, de damno in -vineis, iam dicti loci, per animalia illato. Quoniam, nisi eiusmodi damno, -nisi diuina ope succurri posse existimatur attenta praedictorum -habitantium, humili, ac frequenti, et importuna requisitione praesertim -magnae pristinae vitae errata emendandi per eosdem habitantes, edicto -spectaculo, solemniter supplicationum nuper ex nostra ordinatione, -factarum prompta exhibitione, et sicut Misericordia Dei, peccatores ad se -cum humilitate reuertentes non respuit, ita ipsius Ecclesia eisdem -recurrentibus, auxilium seu etiam solatium qualecunque denegare non debet. - -Non praedictus, in re quamquam noua, tam fortiter tamen efflagitata -Maiorum vestigiis inhaerendo, pro tribunali, sedentes, ac Deum prae oculis -habentes, in eius Misericordiâ, ac pietate confidentes, de peritorum -consilio, nostram sententiam modo quae sequitur, in his scriptis ferimus. - -In nomine, et virtute Dei, Omnipotentis, Patris, et Filij, et Spiritus -sancti, Beatissimae Domini nostri Jesu Christi Genetricis Mariae, -Authoritateque Beatorum Apostolorum, Petri et Pauli, necnon ea qua -fungimur in hac parte, praedictos Bronchos, et Erucas, et animalia -praedicta quocunque nomine censeantur, monemus in his scriptis, sub poenis -Maledictionis, ac Anathematisationis, vt infrà sex dies, à Monitione in -vim sententiae huius, à vineis, et territoriis huius loci discedant, -nullum vlterius ibidem, nec alibi documentum, praestitura, quod si infrà -praedictos dies, iam dicta animalia, huic nostrae admonitioni non -paruerint, cum effectu. Ipsis sex diebus elapsis, virtute et auctoritate -praefatis, illa in his scriptis Anathematizamus, et maledicimus, -Ordinantes tamen, et districtè praecipientes, praedictis habitantibus, -cuiuscumque gradûs, ordinis, aut conditionis existant, vt faciliùs ab -Omnipotente Deo, omnium bonorum largitore, et malorum depulsore, tanti -incommodi liberationem, valeant promereri, quatenùs bonis operibus, ac -deuotis supplicationibus, iugiter attendentes, de caetero suas decimas, -sine fraude secundum loci approbatam consuetudinem persoluant, -blasphemiis, et aliis peccatis, praesertim publicis sedulò abstineant. - - -C - -Allegation, replication, and judgment in the process against field-mice at -Stelvio in 1519. - -KLAG - -Schwarz Mining hat sein Klag gesetzt wider die Lutmäuse in der Gestalt, -dass diese schädliche Tiere ihnen grossen merklichen Schaden tun, so wurde -auch erfolgen, wenn diese schädliche Tiere nit weggeschaft werden, dass -sie ire Jarszinse der Grundherrschaft nit nur geben könnten und verursacht -wurden hinweg zu ziehen, weil sie solcher Gestalten sich nit wüssten zu -ernehren. - -ANTWORT - -Darauf Grienebner eingedingt, und diese Antwort geben und sein Procurey -ins Recht gelegt: er hab diese wider die Tierlein verstanden; es sey aber -männiglich bewusst, dass sie allda in gewisser Gewöhr und Nutzen sitzen, -darum aufzulegen sei----: Derentwegen er in Hoffnung stehe, man werde -ihnen auf heutigen Tage die Nutz und Gewöhr mit keinem Urtel nehmen oder -aberkennen. Im Fall aber ein Urtel erging, dass sie darum weichen müssten, -so sey er doch in Hoffnung, dass ihnen ein anders Ort und Statt geben soll -werden, uf dass sie sich erhalten mögen: es soll ihnen auch bei solchem -Abzug ein frei sicher Geleit vor iren Feinden erteilt, es seyn Hund -Katzen oder andre ihre Feind: er sey auch in Hoffnung, wenn aine schwanger -wäre, dass derselben Ziel und Tag geben werde, dass ir Frucht fürbringen -und alsdann auch damit abziehen möge. - -URTEL - -Auf Klag und Antwort, Red und Widerred, und uf eingelegte Kundschaften und -Alles was für Recht kommen, ist mit Urtel und Recht erkennt, dass die -schädlichen Tierlein, so man nennt die Lutmäuse, denen von Stilfs in Acker -und Wiesmäder nach Laut der Klag in vierzehn Tagen raumen sollen, da -hinweg ziehen und zu ewigen Zeiten dahin nimmer mehr kommen sollen; wo -aber ains oder mehr der Tierlein schwanger wär, oder jugendhalber nit -hinkommen möchte, dieselben sollen der Zeit von jedermann ain frey -sicheres Geleit haben 14 Tage lang; aber die so ziehen mögen, sollen in 14 -Tagen wandern. - -_Vide_ Hormayr's _Taschenbuch für die vaterländische Geschichte_. Berlin, -1845, pp. 239-40. - - -D - -Admonition, denunciation, and citation of the inger by the priest Bernhard -Schmid in the name and by the authority of the Bishop of Lausanne in 1478. - -Du vnvernünfftige/ vnvollkommne Creatur/ mit nammen Inger/ vnd nenne dich -darumb vnvollkommen/ dann deines geschlechts ist nit geseyn in der Arch -Noe/ in der Zeit der vergifftung vnd plag des Wassergusses. Nun hast du -mit deinem anhang grossen schaden gethan im Erdtrich vnd auff dem Erdtrich -ein mercklichen abbruch zeitlicher nahrung der Menschen vnd vnvernüfftigen -thiere. Vnd von des nun/ sömlicher und dergleichen/ durch euch vnd euweren -anhang nit mehr beshäch/ so hat mir mein gnädiger Herr vnd Bischoff zu -Losann gebotten in seinem nammen/ euch zeermannen/ zeweichen vnd -abzestahn. Vnd also von seiner Gnaden gebotts wegen vnd auch in seinem -nammen als obstaht/ vnd bey krafft der heiligen hochgelobten -Dreyfaltigkeit/ vnd durch krafft vnd verdienen des Menschen-geschlechts -Erlösers/ vnsers behalters Jesu Christi/ vnd bey krafft vnd gehorsamkeit -der heiligen Kirchen gebieten vnd ermannen ich euch in 6. nächsten tagen -zeweichen/ all vnd jegliche besonders/ auss allen Matten/ Ackeren/ Gärten/ -Feldern/ Weiden/ Bäumen/ Krüteren/ vnd von allen örteren/ an denen -wachsend vnd entspringend nahrungen der Menschen vnd der Thieren/vndan -dieort vnd stätteuch fügend/ dass ihr mit ewerem anhang nimmer kein -schaden vollbringen mögen an den früchten vnd nahrungen der Menschen vnd -Thieren/ heimlich noch offentlich. Were aber sach/ dass ihr dieser -ermannungen vnd gebott nit nachgiengend/ oder nachfolgeten/ vnd meinten -vrsach haben/ das nit zeerfüllen/ so ermannen ich euch alsvor/ vnd laden -vnd citieren euch bey krafft vnd gehorsamkeit der heiligen Kirchen am 6. -tag nach diser execution/ so es eins schlecht/ nach mitten tag/ gen -Wifflispurg/ euch zu verantworten/ oder durch eweren Fürsprechen antwort -zu geben/ vor meinem gnädigen Herren von Losann/ oder seinem Vicario vnd -statthaltern/ vnd wird drauff mein gnädiger Herr von Losann oder sein -statthalter fürer/ nach ordnungen des rechten/ wider euch/ mit verflüchen -vnd beschweerungen/ handeln/ alss sich dann in solchem gebürt/ nach form -vnd gestalt des rechten. Lieben Kind/ ich begären von ewerem jeglichen zu -bätten mit andacht auff ewerem knyen 3 Paternoster vnd Ave Maria, der -hochen heiligen Dreyfaltigkeit zu lob vnd ehr anzerüffen vnd zebitten ihr -gnad vnd hilff zesenden/ damit die Inger vertriben werdind. - -Job. Heinrich Hottinger: _Historia ecclesiastica novi testamenti_ iv. pp. -317-321, on the authority of Schilling's _Chronica_, the manuscript of -which is in the Zurich library. - - -E - -Decree of Augustus, Duke of Saxony and Elector, commending the action of -Parson Greysser in putting the sparrows under ban, issued at Dresden in -1559. - -Von Gottes Gnaden Augustus, Herzog zu Sachsen und Kurfürst.--Lieber -Getsener, welchergestalt und aus was Ursachen und christlichem Eifer, der -würdige, Unser lieber andächtiger Hr. Daniel Greysser, Pfarrherr allhier -in seiner nächst getanen Predigt, über die Sperlinge etwas heftig bewegt -gewesen und dieselbe wegen ihres unaufhörlichen verdriesslichen grossen -Geschreis und ärgerlichen Unkeuschheit, so sie unter der Predigt, zu -Verhinterung Gottes Worts und christlicher Andact, zu tun und behegen -pflegen, in den Bann getan, und männiglich preis gegeben, dessen wirst du -dich als der damals ohne Zweifel aus Anregung des heiligen Geistes im -Tempel zur Predigt gewesen, guter massen zu erinnern wissen. - -Wiewohl Wir uns nun vorsehen, du werdest, auf gedachten Herrn Daniels -Vermahnen und Bitten, so er an alle Zuhörer insgemein getan, ohne das -allbereit auf Wege gedacht haben; sintemal Wir diesen Bericht erlangt, -dass du dem kleinen Gevögel vor andern durch mancherlei visirliche und -listige Wege und Griffe nachzustellen, auch deine Nahrung unter andern -damit zu suchen und dasselbe zu fahen pflegest,--dass ihnen ihrem -Verdienst nach gelohnt werden möge nach weiland des Herrn Martini seligen -Urtheil--ist demnach unser gnädiges Begehren--zu eröffnen, wie und -welchergestalt auch durch was Behändigkeit und Wege, du für gut ansehest, -dass die Sperlinge eher dann, wann sie jungen, und sich durch ihre -tägliche und unaufhörliche Unkeuschheit unzählich vermehren, ohne -sonderliche Kosten aus der Kirche zum heiligen Kreuz gebracht, und solche -ärgerliche Vöglerei und hinterlicher Getzschirpe und Geschrei im Hause -Gottes, verkümmert werden möge.... Das gereicht zur Beförderung guter -Kirchenzucht und geschieht daran unsere gnädige Meinung. Datum Dresden, -den. 18. Februar 1559.--Unserm Secretario und lieben getreuen Thomas -Nebeln. - -_Vide_ Hormayr's _Taschenbuch, etc._, 1845, pp. 227-8. - - -F - -Chronological List of Excommunications and Prosecutions of Animals from -the Ninth to the Nineteenth Century.[5] - - ------------------------------------------------------------------------ - Sources of Information | Dates | Animals | Places - ----------------------------+-------+-------------+--------------------- - Annales Ecclesiastici | 824 |Moles |Valley of Aosta - Francorum | | | - | | | - Muratori: Rer. Ital. | 886 |Locusts |Roman Campagna - Scriptores, iii | | | - | | | - Gaspard Bailly: | 9th |Serpents |Aix-les-Bains - Traité des Monitoires | cent. | | - | | | - Sainte-Foix: Oeuvres, iv, | 1120 |Field-mice |Laon - p. 97, Mémoires de la | |and | - Société Royale des | |Caterpillars | - Antiquaires de France, | | | - viii, p. 427 | | | - | | | - Théophile Raynaud: De | 1121 |Flies |Foigny near Laon - Monitoriis in Opusc. | | | - missc. ejus, xiv, p. 482. | | | - Mémoires, cit., viii, p. | | | - 415. Note, Vita S. | | | - Bernhardi, i, No. 58. | 1121 |Horseflies |Mayence - Acta., SS. Aug. iv, p. 272| | | - | | | - Malleolus: De Exorcismis | 1225 |Eels |Lausanne - | | | - L'Abbé Leboeuf: Hist. de | 1266 |Pig |Fontenay-aux-Roses - Paris, ix, p. 400. | | | near Paris - Mémoires, cit., viii, | | | - p. 427 | | | - | | | - Sainte-Foix: Oeuvres | 1314 |Bull |Moiey-le-Temple - Thémis, viii | | | - | | | - " " " | 1320 |Cockchafers |Avignon - | | | - Carpentier to Du Cange, | 1322 | |Not Specified - _vide_ Homicida | | | - | | | - " " " | 1323 | |Abbeville - Both cited by Von Amira, | | | - p. 552 | | | - | | | - Zeitschrift für deutsche | 1338 | |Kaltern - Kulturgeschichte, ii, p. | | | - 544; also Germania, iv, | | | - p. 383. Von Amira, p. 561 | | | - | | | - Delisle: Etudes sur la | 1356 |Pig |Caen - condition de la classe | | | - agricole, p. 107. Von | | | - Amira, p. 552 | | | - | | | - Carpentier to Du Cange. | 1378 | |Abbeville - _Vide_ homicida. Von | | | - Amira, p. 552 | | | - | | | - Garnier: Revue des Sociétés | 1379 |Three sows |Saint-Marcel - Savantes, Dec. 1866, pp. | |and a pig. | les-Jussey - 476, _sqq._ From the | |Rest of the | - archives of Côte-d'Or | |two herds | - | | pardoned | - | | | - Charange: Dict. des Titres | 1386 |Sow |Falaise - Originaux, ii, p. 72. | | | - _Also_ statistique de | | | - Falaise, i, p. 63. | | | - Mémoires, cit., viii, | | | - p. 427 | | | - | | | - Auranton: Annuaire de la | 1389 |Horse |Dijon - Côte-d'Or | | | - | | | - Berriat-Saint-Prix in | 1394 |Pig |Mortaing - Mémoires, cit., viii, p. | | | - 427. From MSS. in la | | | - Bibliothèque du Roi | | | - | | | - Malleolus: De Exorcismis, | 14th |Spanish flies|Mayence - Tract. ii, Mémoires, | cent. | | - cit., viii, p. 411 | | | - | | | - MS. of Judge Hérisson, | 1403 |Sow |Meulan - published by Lejeune in | | | - Mémoires, cit., viii, p. | | | - 433; _also_ Loriol: | | | - La France Eure et Loire, | | | - p. 108 | | | - | | | - Auranton: Annuaire de la | 1404 |Pig |Rouvre - Côte-d'Or | | | - | | | - MS. Bibliothèque du Roi | 1405 |Ox |Gisors - Mémoires, cit., viii, | | | - p. 427 | | | - | | | - MS. Bibliothèque du Roi | 1408 |Pig |Pont-de-l'Arche - Mémoires, cit., viii, | | | - p. 428 | | | - | | | - Louandre: Histoire | 1414 | " |Abbeville - d'Abbeville | | | - | | | - " " " | 1418 | " | " - | | | - Auranton: Annuaire de la | 1419 | " |Labergement-le-Duc - Côte-d'Or | | | - | | | - " " " | 1420 | " |Brochon - | | | - " " " | 1435 | " |Trochères - | | | - Malleolus: De Exorcismis, | 1451 |Rats and |Berne - Mémoires, cit., viii, | | Bloodsuckers| - p. 423 | | | - | | | - Garnier: Revue des Sociétés | 1452 |Sixteen cows |Rouvre - Savantes, iv, p. 476 | | and one goat| - _sqq._ Dec. 1866 | | | - | | | - Gui-Pape: Decisiones | 1456 |Pig |Bourgogne - Thémis, i, p. 196 | | | - | | | - Mémoires, cit., viii, pp. | 1457 |Sow |Savigny-sur-Etang, - 441-445. From Archives of | | | Bourgogne - Monjeu and Dependencies | | | - | | | - Desnoyers: Recherches etc. | 1460-1|Weevils |Dijon - | | | - A. Duboys: Justice et | 1463 |Two pigs |Amiens - Bourreau à Amiens | | | - | | | - Sauval: Histoire de Paris, | 1466 |Sow |Corbeil - iii, p. 387. Mémoires, | | | - cit., viii, p. 428 | | | - | | | - A. Duboys: Histoire de Paris| 1470 |Mare |Amiens - | | | - Promenades pittoresques dans| 1474 |Cock |Bâle - l'Evêché de Bâle. Journal | | | - du Départment du Nord, | | | - Nov. 1, 1813. Mémoires, | | | - cit., viii, p. 428. Johann| | | - Gross: Kleine Baseler | | | - Chronik. | | | - | | | - Schilling: Chronica (Zurich | 1478 |Inger (sort |Berne - MS.), Hottinger: Hist. | | of weevil) | - Eccles. Pars iv, pp. | | | - 317-321 | | | - | | | - Ruchat: Hist. Eccles. du |1479[6]|Inger | " - Pays de Vaud | | | - | | | - Hist. de Nismes. Mémoires, | 1479 |Rats and |Nîmes - cit., viii, p. 428. | | Moles | - | | | - Louandre: Hist. d'Abbeville | 1479 |Pig |Abbeville - | | | - Chasseneus: Consilia von | 1481 |Caterpillars |Macon - Amira, p. 561 | | | - | | | - Victor Hugo: Nôtre Dame de | 1482 |Goat |Paris - Paris | | | - | | | - Chasseneus: Consilia. | 1487 |Snails |Macon - Mémoires, cit., viii, | | | - p. 416 | | | - | | | - " " " | 1488 | " |Autun - | | | - " " " | 1488 |Weevils |Beaujeu - | | | - Louandre: Hist. d'Abbeville | 1490 |Pig |Abbeville - | | | - Annuaire de l'Aisne 1812, | 1494 |Pig |Clermont-les-Moncornet - p. 88. Mémoires, cit., | | | near Laon - viii, p. 428, 446 | | | - | | | - Saint-Edme: Dict. de la | 1497 |Sow |Charonne - Penalité, sub verb. | | | - Animaux | | | - | | | - Voyage Littéraire de deux | 1499 |Bull |Beauvais - Bénédictins (Durand et | | | - Martenne), 1717, ii, | | | - p. 166-7 | | | - | | | - Archives de l'Abbaye de | 1499 |Pig |Sèves near Chartres - Josaphat. Mémoires, cit., | | | - viii, p. 434-5 | | | - | | | - Mémoires, cit., viii, p. | 15th |Sow |Dunois - 434 | cent. | | - | | | - Malleolus: De Exorcismis | " |Caterpillars |Coire - | | | - " " " | " |Worms |Constance - | | | - " " " | " |Beetles |Coire - | | | - Louandre: L'Épopée des | 1500 |Flies |Mayence - Animaux | | | - | | | - Chasseneus: Consilia | 1500 |Snails |Lyon - | | | - Chasseneus: Consilia | 1500- |Vermin |Autun - | 1530 | (Rats, etc.)| - | | | - Mémoires et Documents, publ.| 1509 |Vermin |Lausanne - par la Soc. de la Suisse | | | - Romande, vii, No. 97, pp. | | | - 675-677 | | | - | | | - Annuaire de la Côte-d'Or | 1510 |Pig |Dijon - | | | - Annuaire de la Côte-d'Or. | 1512 | " |Arcenaux - Mémoires, cit., viii, | | | - p. 447 | | | - | | | - Mathieu: Hist. des Évêques |1512-13|Rats and |Langres - de Langres, p. 188 | | Insects | - | | | - Groslée: Ephémérides, 1811, | 1516 |Weevils |Troyes in Champagne - ii, p. 153, 168. _Cf._ |(1506 | | - Théophile Raynaud: Opusc, | according | - 1665, p. 482. Mémoires, | to some | - cit., viii, p. 413, 418, | authorities) | - 424 | | | - | | | - Habasque: Not. hist. sur le | 1516 |Locusts |Tréguier - Litoral des Côtes-du-Nord,| | | - p. 89 | | | - | | | - Scheible: Das Kloster, xii, | 1519 |Field-mice |Glurns (Stelvio) - pp. 946-48 | | | - | | | - Saint-Edme: Dict. de la |1522[7]|Rats |Autun - Penalité. _Cf._ Chasseneus| | | - | | | - Vernet in Thémis ou | 1525 |Dog |Parliament of - Bibliothèque des | | | Toulouse - Jurisconsulte, viii | | | - | | | - Papon and Boesius: | 1528 |Not specified|Parliament of - Decisiones. _Cf._ Thémis, | | | Bordeaux - viii | | | - | | | - " " " | 1528 | " | " " - | | | - Ménebréa: Jugements rendus | 1536 |Weevils |Lutry (on Lake - contre les Animaux, p. | | | Leman) - 505. From Grenier: | | | - Documents relatifs à | | | - l'hist. du pays de Vaud. | | | - | | | - Lerouge: Registre secret | 1540 |Bitch |Meaux - manuscrit | | | - | | | - Annuaire de la Côte-d'Or | 1540 |Pig |Dijon - | | | - Lerouge: Registre secret | 1541 |She-Ass |Loudun - manuscrit | | | - | | | - Bailly: Traité des | 1541 |Grasshoppers |Lombardy - Monitoires, ii | | | - | | | - Malleolus: De Exorcismis | 1541 |Vermin |Lausanne - | |(worms, rats,| - | |bloodsuckers)| - | | | - Berriat-Saint-Prix in | 1543 |Snails and |Grenoble - Thémis, i, p. 196 | | Locusts | - | | | - Ménebréa: Jugements rendus | 1545 |Weevils |St. Jean de - contre les Animaux, pp. | and | | Maurienne - 544, 545, 556. De Actis | 1546 | | - Scindicorum com. St. | | | - Jul., etc. | | | - | | | - Dulaure: Hist. de Paris, | 1546 |Cow |Parliament of - iii, p. 28, Registres | | | Paris - manuscrits de la | | | - Tournelle. _Cf._ Mémoires,| | | - cit., viii, p. 429 | | | - | | | - Lerouge: Registre secret | 1550 | " | " " - manuscrit | | | - | | | - " " " | 1551 |Goat |Ile de Rhé - | | | - " " " | 1554 |Sheep (ewe) |Beaugé - | | | - Aldrovande: De Insectis, | 1554 |Bloodsuckers |Lausanne - 1602, lib. vii, 724. | | | - Mémoires, cit. viii, | | | - p. 429 | | | - | | | - Desnoyer, cited in Revue des| 1554 |Insects |Langres - questions historiques, v, | | | - p. 278. Von Armira, p. 567| | | - | | | - Lerouge: Registre secret | 1556 |She-Ass |Sens - manuscrit | | | - | | | - Lecoq: Hist. de la Ville de | 1557 |Pig |Saint-Quintin - Saint-Quintin, p. 143. | | | - Sorel: Procès contre des | | | - animaux, etc., p. 9 | | | - | | | - Lerouge: Registre secret | 1560 |She-Ass |Loigny near - manuscrit | | | Châteaudun - | | | - " " " | 1561 |Cow |Augoudessus in - | | | Picardy - | | | - Lessona: I Nemici del | 1562 |Weevils |Argenteuil - Vino. Regist. Epir. Par. | | | - for May 8 | | | - | | | - Ranchin on Gui. Pape | 1565 |Mule |Montpellier - Quaest., 74. Thémis, i, | | | - p. 196. Mémoires, cit., | | | - viii, p. 429 | | | - | | | - Papon: Decisiones. Thémis, | 1565 |Not specified|Parliament of - viii | | | Toulouse - | | | - Louandre: L'Epopée des | 1566 |She-Ass |Parliament of - Animaux | | | Paris - | | | - MSS. of Bibliothèque | 1567 |Sow |Senlis - Nationale of Paris | | | - | | | - Lionnois: Hist. de Nancy, | 1572 |Pig |Moyen-Montier, - 1811, ii, p. 374 | | | near Nancy - | | | - Lersner: Chronica, 1706, | 1574 | " |Frankfort-on-the-Main - p. 552 | | | - | | | - Brillon: Decisiones Thémis, | 1575 |She-Ass |Parliament of - viii | | | Paris - | | | - Haus-Chronik von | 1576 |Pig |Schweinfurt - Schweinfurt, in | | | - Zeitschrift für deutsche | | | - Kulturgeschichte, i, 156 | | | - | | | - Cannaert: Bydragen tot de | 1578 |Pig(?) |Ghent - Kennis van het oude | | | - strafrecht in Vlandern, | | | - 1835, p. vii | | | - | | | - Derheims: Hist. de | 1585 |Pig |Saint-Omer - Saint-Omer, p. 327 | | | - | | | - Chorier: Hist. du Dauphiné. | " |Locusts |Valence - _Cf._ Thémis, i, p. 196 | | | - | | | - Ménebréa: Jugements rendus | 1587 |Weevils |St. Jean-de-Maurienne - contre les animaux, etc., | | | - pp. 546, 549 | | | - | | | - Fornery and Laincel | 1596 |Dolphins |Marseilles - | | | - Théophile Raynaud: De | 16th |Weevils and |Cotentin - Monitoriis, p. 482. | cent. | Grasshoppers| - Mémoires, cit., viii, |(first | | - p. 429 | half) | | - | | | - Chasseneus: Consilia. | " |Snails |Lyons - Mémoires, cit., viii, | | | - p. 415 | | | - | | | - " " " | " |Weevils |Mâcon - | | | - " " " | " |Pig |Dijon - | | | - Louandre: L'Épopée des | " |Dog |Scotland - Animaux | | | - | | | - Duboys: Hist. du Droit | 16th |Weevils |Angers - Crim. de la France | cent. | | - | second| | - | half | | - | | | - Azpilcueta Martinus Doctor | " |Rats |Spain - Navarrus: Consilia seu | | | - Responsa, 1602, ii, p. | | | - 812. Mémoires, cit., viii,| | | - p. 419. Théoph. Raynaud, | | | - cit., p. 482 | | | - | | | - Francesco Vivio: Decisiones,| 16th |Divers |Aquila in Italy - No. 68. Cited by | cent. | animals | - D'Addosio: Bestie Delinq.,| second| | - p. 125 | half | | - | | | - Archives of Obwalden | " |Gadflies |Aargau - | | | - Leonardo Vairo: De Fascino. | " |Locusts |Naples - _Cf._ D'Addosio, cit., | | | - p. 115. | | | - | | | - Sardagna: L'uomo e le | " |Horse |Portugal - Bestie. Cited by D'Addosio| | | - | | | - Mornacius to Du Cange, | 1600 | |Beauvais - _s.v._ Homicida | | | - | | | - Lerouge: Registre secret | " |Cow |Thouars - manuscrit | | | - | | | - " " " | " | " |Abbeville - | | | - Lessona: I Nemici del Vino, | " |Weevils |Vercelli - 1890, p. 141 | | | - | | | - Papon: Decisiones. Thémis, | 1601 |Dog |Brie - viii. Lerouge: Reg. | | | - secret manuscrit | | | - | | | - Lerouge: Registre secret | " |Mare |Provins - manuscrit | | | - | | | - Papon: Recueil d'Arrets | 1601 |Not |Parliament of - | | specified | Paris - | | | - Charma: Leçons de | 1604 |Ass |Parliament of - Philosophie | | | Paris - | | | - Guerra: Diurnali | " | " |Naples - | | | - Lerouge: Registre secret | " |Mare |Joinville - manuscrit | | | - | | | - " " " | 1606 |Sheep |Riom - | | | - " " " | " |Cow |Châteaurenaud - | | | - | | | - " " " | " |Mare |Coiffy near Langres - | | | - | | | - Lejeune: Mémoires, cit., | " |Bitch |Chartres - viii, p. 418 | | | - | | | - Lerouge: Registre secret | 1607 |Mare |Boursant near - manuscrit | | | d'Epernay - | | | - " " " | 1609 | " |Montmorency - | | | - " " " | " | " |Niederrad - | | | - Voltaire: Siècle de Louis | " |Cow |Parliament of - XIV, ch. i. Louandre: | | | Paris - Rev. des deux Mondes, | | | - 1854, i, p. 334 | | | - | | | - Lerouge: Registre secret | 1610 |Horse |Paris - manuscrit | | | - | | | - " " " | 1611 |Goat |Laval - | | | - " " " | " |Cow |St. Fergeux - | | | near Rethel - | | | - " " " | 1613 |Sow |Montoiron near - | | | Chatelleraut - | | | - " " " | 1614 |She-Ass |Le Mans - | | | - Desnoyers: Recherches, etc.,| 1616 |Rats and |Langres - p. 13 | | insects | - | | | - Anzeige für Kunde der | 1621 |Cow |Machern near - deutschen Vorzeit, 1880, | | | Leipsic - col. 102 | | | - | | | - Lerouge: Registre secret | 1621 |Mare |La Rochelle - manuscrit | | | - | | | - " " " | 1622 | " |Montpensier - | | | - " " " | 1623 |She-Ass |Bessay near Moulins - | | | - " " " | 1624 |Mule |Chefboutonne (Poitou) - | | | - Döpler: Theat. pen., ii, | 1631 |Mares and |Greifenberg - p. 574 | | Cows | - | | | - Marchisio Michele: Gatte | 1633 |Weevils |Strambino - ed. insetti nocivi, 1834, | | | (Ivrea) - p. 63 _sqq._ | | | - | | | - Lerouge: Registre secret | " |Mare |Bellac - manuscrit | | | - | | | - Carpentier to Du Cange, | 1641 |Pig |Viroflay - _s.v._ Homicida | | | - | | | - Lerouge: Registre secret | 1647 |Mare |Parliament of - manuscrit | | | Paris - | | | - " " " | 1650 | " |Fresnay near Chartres - | | | - Crollolanza: Storia del | 1659 |Caterpillars |Chiavenna - Contado di Chiavenna, | | | - p. 455 _sqq._ | | | - | | | - Perrero: Gazzetta | 1661 |Weevils |Turin - Litteraria di Torino, | | | - Feb. 24, 1883 | | | - | | | - Cotton Mather: Magnalia | 1662 |Cow, two |New Haven, Conn. - Christi Americana, Book | | Heifers, | - vi. London, 1702 | | three Sheep,| - | | and two Sows| - | | | - Lerouge: Registre secret | 1666 |Mare |Tours - manuscrit | | | - | | | - " " " | " | " |St. P. Lemontiers - | | | - Lerouge: Registre secret | 1667 |She-Ass |Vaudes near - manuscrit | | | Bar-sur-Seine - | | | - " " " | 1668 |Mare |Angers - | | | - Annales scientifiques de | 1670 |Locusts |Clermont - l'Auvergne, Vol. vii, | | | - p. 391 | | | - | | | - Döpler: Theatrum pen., ii, | 1676 |Mare and Cow |Silesia - p. 5 | | | - | | | - Lerouge: Registre secret | 1678 | " |Beaugé - manuscrit | | | - | | | - Perrero: Gaz. Litter. di | " |Weevils |Turin - Torius, Feb. 24, 1883 | | | - | | | - Brillon: Decisiones, i, | 1679 |Mare |Parliament - p. 914. Mémoires, cit., | | | d'Aix - viii, p. 431. Boniface: | | | - Traité des matières | | | - criminelles, 1785, p. 31 | | | - | | | - Chorier: Hist du Dauphiné. | Before|Worms |Constance - Thémis, viii | 1680 | | and Coire - | | | - Lerouge: Registre secret | 1680 |Mare |Fourches near - manuscrit | | | Provins - | | | - Heinrich Roch: Schlesische | 1681 |Mare |Wünschelburg - Chronik, p. 342. Döpler: | | | in Silesia - Theat. pen., ii, p. 573 | | | - _sqq._ | | | - | | | - " " " | 1684 |Mare |Ottendorf - | | | - " " " | 1685 | " |Striga - | | | - Dulaure: Description des | 1690 |Locusts |Pont-de-Château - principaux lieux de la | | | in Auvergne - France, 1789, v, p. 493 | | | - _sqq._ Mémoires, cit., | | | - viii, p. 412 | | | - | | | - Lerouge: Registre secret | 1692 |Mare |Moulins - manuscrit | | | - | | | - La Hontan: Voyages, Let. xi,| End of|Turtledoves |Canada - p. 79. Mémoires, cit., | 17th | | - viii, p. 431 | cent. | | - | | | - Meiners: Vergleichung des | " |He-Goat |Russia - ältern u, neuern | | banished | - Russlands, p. 291. | | to Siberia | - _Cf._ Amira, p. 573 | | | - | | | - Registres de la Paroise de | 1710 |Rats |Grignon - Grignon | | | - | | | - Sorel: Procès contre des | 1710 |Vermin |Autun - animaux, etc., p. 23 | | | - | | | - Rinds Herreds Krönike and | 1711 | " |Als in Jutland - other sources given by | | | - Amira, p. 565 | | | - | | | - Agnel: Curiosités | 1713 |Termites |Piedade no Maranhão - judiciaires et | | | in Brazil - historiques du moyen-âge, | | | - p. 46. _Cf._ Manoel | | | - Bernardes: Nova Floresta | | | - ou Sylva de varios | | | - apophthegmas, etc. 5 tom. | | | - Lisboá, 1706-47 | | | - | | | - MSS. of Bibliothèque | 1726 |Not specified|Paris - Nationale of Paris, | | | - No. 10,970. D'Addosio: | | | - Best. Del., p. 107 | | | - | | | - Ménebréa: Jugements contre | 1731 |Insects |Thonon - les animaux, p. 508 | | | - | | | - La Tradition, 1888, p. 363 | 1733 |Vermin |Buranton - _sqq._ Amira, p. 564 | | | - | | | - Rousseaud de Lacombe: | 1741 |Cow |Poitou - Traité des matières crim. | | | - D'Addosio: Best. Del., | | | - p. 107 | | | - | | | - Ant. de Saint-Gervais: | 1750 |She-Ass |Vanvres - Hist. des Animaux | | | - | | | - A Report of the Case of | 1771 |Dog |Chichester, England - Farmer Carter's Dog. | | | - Amira, p. 559 | | | - | | | - Comparon: Hist. du | 1793 | " |Paris - Tribunal Révolutionnaire | | | - de Paris. _Cf._ Sorel, | | | - op. cit., p. 16 | | | - | | | - Filangieri: Scienza della | 18th |Dogs |Italy - Legislazione | cent. | | - | | | - Det. Kong. Danske | | | - Landhusholdnings-Selskabs | 1805-6|Vermin |Lyö in Denmark - Skrifter. Ny Saml. ii, 1, | | | - 22. Amira, p. 565 | | | - | | | - Desnoyers: Recherches, | 1826 |Locusts |Clermont-Ferrand - etc., p. 15 | | | - | | | - Gazette des Tribunaux, | 1845 |Dog |Paris - Jan. 23, 1845 | | | - | | | - " " " | 1864 |Pig |Pleternica in - | | | Slavonia - | | | - Krauss, quoted by Amira, | 1866 |Locusts |Pozega in - p. 573 | | | Slavonia - | | | - " " " | " |Grasshoppers |Vidovici in - | | | Slavonia - | | | - Desnoyer: Recherches, | 19th |Locusts |Catalonia - etc., p. 15 | cent. | | - | | | - Allg. deutsche | | | - Strafrechts-zeitung, | " |Cock |Leeds in England - 1861, No. 2. Also Pertile:| | | - Gli animali in giudizio | | | - | | | - Cretella: Gli Animali | " |Wolf |Calabria - sotto processo in Fanfulla| | | - 1891, No. 65. _Cf._ Amira,| | | - p. 569 | | | - | | | - New York Herald and Echo | 1906 |Dog |Délémont in - de Paris, May 4, 1906[8] | | | Switzerland - ------------------------------------------------------------------------ - - -G - -Receipt dated Jan. 9, 1386, in which the hangman of Falaise acknowledges -to have been paid by the Viscount of Falaise ten sous and ten deniers -tournois for the execution of an infanticidal sow, and also ten sous -tournois for a new glove. - - Quittance originale du 9, janvier 1386, passée devant Guiot de - Montfort, tabellion à Falaise, et donnée par le bourreau de cette - ville de la somme de _dix sols et dix deniers tournois_ pour sa peine - et salaire d'avoir trainé, puis pendu à la justice de Falaise une - truie de l'age de 3 ans ou environ, qui avoit mangé le visage de - l'enfant de Jonnet le Maux, qui était au bers et avoit trois mois et - environ, tellement que ledit enfant en mourut, et de _dix sols - tournois pour un gant neuf_ quand le bourreau fit la dite execution; - cette quittance est donné á Regnaud Rigault, vicomte de Falaise; le - bourreau y declare qu'il se tient pour bien content des dites sommes, - et qu'il en tient quitte le roy et ledit vicomte. - -Charange: _Dictionnaire des Titres Originaux_. Paris, 1764. Tome II. p. -72. Also _Statistique de Falaise_, 1827. Tome I. p. 63. - - -H - -Receipt, dated Sept. 24, 1394, in which Jehan Micton, hangman, -acknowledges that he received the sum of fifty sous tournois from Thomas -de Juvigney, viscount of Mortaing, for having hanged a pig which had -killed and murdered a child in the parish of Roumaygne. - - A tous ceulx qui ces lettres verront ou orront, Jehan Lours, garde du - scel des obligacions de la vicomté de Mortaing, salut, Sachent tous - que par devant Bynet de l'Espiney, clerc tabellion juré ou siege dudit - lieu de Mortaing, fut present mestre Jehan Micton, pendart,[9] en la - viconté d'Avrenches, qui recognut et confessa avoir eu et repceu de - homme sage et pourveu Thomas de Juvigney, viconte dudit lieu de - Mortaing, c'est assavoir la somme de cinquante souls tournois pour sa - paine et salaire d'estre venue d'Avrenches jusques à Mortaing, pour - faire acomplir et pendre à la justice dudit lieu de Mortaing, un porc, - lequel avait tué et meurdis un enfant en la paroisse de Roumaygne, en - ladite viconté de Mortaing. Pour lequel fait ycelui porc fut condanney - à estre trayné et pendu, par Jehan Pettit, lieutenant du bailli de _Co - ... rin_, es assises dudit lieu de Mortaing, de laquelle somme dessus - dicte le dit pendart se tint pour bien paié, et en quita le roy nostre - sire, ledit viconte et tous aultres. En tesmoing de ce, nous avons - sellé ces lettres dudit scel, sauf tout autre droit. C'en fut fait - l'an de grace mil trois cens quatre-vings et quatorze, le XXIIII{e} - jour de septembre. Signé J. LOURS. (Countersigned) BINET. - -[Extract from the manuscripts of the _Bibliothèque du Roi_. _Vide_ -Mémoires, _ibid._ pp. 439-40.] - - -I - -Attestation of Symon de Baudemont, lieutenant of the bailiff of Mantes and -Meullant, made by order of the said bailiff and the King's proctor, on -March 15, 1403, and certifying to the expenses incurred in executing a sow -that had devoured a small child. - - A tous ceuls qui ces lettres verront: Symon de Baudemont, lieutenant à - Meullant, de noble homme Mons. Jehan, seigneur de Maintenon, chevalier - chambellan du Roy, notre sire, et son bailli de Mante et dudit lieu de - Meullant: Salut. Savoir faisons, que pour faire et accomplir la - justice d'une truye qui avait devoré un petit enffant, a convenu faire - necessairement les frais, commissions et dépens ci-après déclarés, - c'est à savoir: Pour dépense faite pour elle dedans le geole, six sols - parisis. - - Item, au maître des hautes-oeuvres, qui vint de Paris à Meullant faire - ladite exécution par le commandement et ordonnance de nostre dit - maistre le bailli et du procureur du roi, cinquante-quatre sols - parisis. - - Item, pour la voiture qui la mena à la justice, six sols parisis. - - Item, pour cordes à la lier et hâler, deux sols huit deniers parisis. - - Item, pour gans, deux deniers parisis. - - Lesquelles parties font en somme toute soixante neuf sols huit deniers - parisis; et tout ce que dessus est dit nous certifions être vray par - ces présentes scellées de notre scel, et à greigneur confirmation et - approbation de ce y avons fait mettre le scel de la châtellenie dudit - lieu de Meullant, le XV{e} de mars l'an 1403. Signé de Baudemont, avec - paraffe, et au dessous est le sceau de la châtellenie de Meullant. - -[Extract from the manuscripts of M. Hérisson, judge of the civil court of -Chartres, communicated by M. Lejeune to the _Mémoires de la Société Royale -des Antiquaires de France_. Tome viii, pp. 433-4.] - - -J - -Receipt, dated Oct. 16, 1408, and signed by Toustain Pincheon, jailer of -the royal prisons in the town of Pont de Larche, acknowledging the payment -of nineteen sous and six deniers tournois for food furnished to sundry men -and to one pig kept in the said prisons on charge of crime. - - Pardevant Jean Gaulvant, tabellion juré pour le roy nostre sire en la - viconté du Pont de Larche, fut présent Toustain Pincheon, geolier des - prisons du roy notre sire en la ville du Pont de Larche, lequel cognut - avoir eu et recue du roy nostre dit sire, par la main de honnorable - homme et saige Jehan Monnet, viconte dudit lieu du Pont de Larche, la - somme de 19 sous six deniers tournois qui deus lui estoient, c'est - assavoir 9 sous six deniers tournois pour avoir trouvé (livré) le pain - du roi aux prisonniers debtenus, en cas de crime, es dites prisons. - (Here the names of these prisoners are given.) _Item_ à ung porc - admené es dictes prisons, le 21{e} jour de juing 1408 inclus, jusques - au 17{e} jour de juillet après en suivant exclut que icellui porc fu - pendu par les gares à un des posts de la justice du Vaudereuil, à quoy - il avoit esté condempné pour ledit cas par monsieur le bailly de Rouen - et les conseuls, es assises du Pont de Larche, par lui tenues le 13{e} - jour dudict mois de juillet, pource que icellui porc avoit muldry et - tué ung pettit enfant, auquel temps il a xxiiii jours, valent audit - pris de 2 deniers tournois par jour, 4 sols 2 deniers, et pour avoir - trouvé et baillé la corde qu'il esconvint à lier icelui porc qu'il - reschapast de ladite prison où il avait esté mis, x deniers tournois. - Du 16 Octobre 1408. - -[Derived from manuscripts of the _Bibliothèque du Roi_. _Vide_ Mémoires, -cit., pp. 428 and 440-1.] - - -K - -Letters patent, by which Philip the Bold, Duke of Burgundy, on Sept. 12, -1379, granted the petition of the friar Humbert de Poutiers, prior of the -town of Saint-Marcel-lez-Jussey, and pardoned two herds of swine which had -been condemned to suffer the extreme penalty of the law as accomplices in -an infanticide committed by three sows. - - Phelippe, filz du Roi de France, duc de Bourgoingue, au bailli de noz - terres au conté de Bourgoingue, salut. - - Oye la supplication de frère Humbert de Poutiers, prieur de la - prieurté de la ville de Saint-Marcel-lez-Jussey, contenant que comme - le V{e} jour de ce présent mois de septembre, Perrinot, fils Jehan - Muet, dit _le Hochebet_, pourchier commun de ladite ville, gardant les - pors des habitans d'icelle ville ou finaige d'icelle, et au cry de - l'un d'iceulx pors, trois truyes estans entre lesdits pors ayent couru - sus audit Perrenot, l'ayent abattu et mis par terre entre eulx, ainsi - comme par Jehan Benoit de Norry qu'il gardoit les pourceaulx dudit - suppliant, et par le père dudit Perrenot a esté trouvé blessier à mort - par lesdites truyes, et si comme icelle Perrenot la confessè en la - présence de son dit père e dudit Jehan Benoit, et assez tost après il - soit eu mort. Et pour ce que ledit suppliant auquel appartient la - justice de ladite ville ne fust repris de negligeance son maire - arresta tous lesdits porcs pour en faire raison et justice en la - manière qu'il appartient, et encore les détient prissonniers tant - ceux de ladite ville comme partie de ceulx dudit suppliant, pour ce - que dit ledit Jehan Benoit ils furent trouvez ensemble avec lesdites - truyes, quand ledit Perrenot fut ainsi blessié. Et ledit prieur nous - ait supplié que il nous plaise consentir que en faisant justice de - trois ou quatres desdits porcs le demeurant soit delivré. Nous - inclinans à sa requeste, avons de gràce especiale ouctroyé et - consenty, et par ces présentes ouctroyons et consentons que en faisant - justice et execution desdites trois truyes et de l'ung des pourceaulx - dudit prieur, que le demeurant desdits pourceaulx soit mis à delivre, - nonobstant qu'ils aient esté à la mort dudit pourchier. Si vous - mandons que de notre presente grâce vous faictes et laissiez joyr et - user ledit prieur et autres qu'il appartiendra, sans les empescher au - grâce. - - Donné à Montbar, le XII{e} jour de septembre de l'an de grâce mil CCC - LXX IX. Ainsi signé. Par monseigneur le duc: _J. Potier_. - -[Published by M. Garnier in the _Revue des Sociétés Savantes_, Dec. 1866, -pp. 476 _sqq._, from the archives of Côte-d'Or and reprinted by D'Addosio -in _Bestie Delinquenti_, pp. 277-8.] - - -L - -Sentence pronounced by the Mayor of Loens de Chartres on the twelfth of -September, 1606, condemning Guillaume Guyart to be hanged and burned -together with a bitch. Extract from the records of the clerk's office of -Loing under the date of Sept. 12, 1606. - - Entre le procureur de messieurs[10] demandeur et accusateur au - principal et requérant le proffit et adjudication de troys deffaulx et - du quart d'abondant, d'une part, et Guillaume Guyard, accusé, - deffendeur et défaillant, d'autre part. - - Veu le procès criminel, charges et informations, décret de prise de - corps, adjournement à troys briefs jours, les dicts trois deffaulx, le - dict quart d'habondant, le recollement des dicts témoings et - _recognaissance faicte par les dicts témoings de la chienne dont est - question_, les conclusions dudict procureur, tout veu et eu sur ce - conseil, nous disant que lesdicts troys deffaulx et quart d'habondant - ont esté bien donnés pris et obtenus contre ledict Guyard accusé, - attainct et convaincu ......... - - Pour réparation et punition duquel crime condempnons ledict Guyard - estre pendu et estranglé à une potence qui, pour cest effet, sera - dressée aux lices du Marché aux Chevaux de ceste ville de Chartres, au - lieu et endroict où les dict sieurs ont tout droit de justice. Et - auparavant ladicte exécution de mort, que ladicte chienne sera - assommée par l'exécuteur de la haute justice audict lieu, et seront - les corps morts, tant dudict Guyard que de la dicte chienne brûlés et - mis en cendres, si le dict Guyard peut estre pris et apprehendé en sa - personne, sy non pour le regard du dict Guyard, sera la sentence - exécuté par effigie en un tableau qui sera mis et attaché à ladicte - potence, et déclarons tous et chascuns ses biens acquis et confisqués - à qui il appartiendra, sur cieux préalablement pris la somme de cent - cinquante livres d'amende que nous avons adjugées auxdicts sieurs, sur - laquelle somme seront pris les fraicts de justice. Prononcé et exécuté - par effigie, pour le regard du dict Guyard les jour et an cy dessus. - Signé _Guyot_. - -[A true copy of the original extract extant in the office of M. Hérisson, -judge of the civil court of Chartres, made by M. Lejeune and communicated -to the Société Royale des Antiquaires de France. _Vide_ Mémoires of this -Society, cit., pp. 436-7.] - - -M - -Sentence pronounced by the judge of Savigny on Jan. 1457, condemning to -death an infanticidal sow. Also the sentence of confiscation pronounced -nearly a month later on the six pigs of the said sow for complicity in her -crime. - - Jours tenus au lieu de Savigny, près des foussés du Chastelet de dit - Savigny, par noble homme Nicolas Quarroillon, ecuier, juge dudit lieu - de Savigny, et ce le 10{e} jour du moys de janvier 1457, présens - maistre Philebert Quarret, Nicolas Grant-Guillaume, Pierre Bome, - Pierre Chailloux, Germain des Muliers, André Gaudriot, Jehan Bricard, - Guillaume Gabrin, Philebert Hogier, et plusieurs autres tesmoins à ce - appellés et requis, l'an et jour dessus dit. - - Huguemin Martin, procureur de noble damoiselle Katherine de Barnault, - dame dudit Savigny, demandeur à l'encontre de Jehan Bailly, alias - Valot dudit Savigny, et promoteur des causes d'office dudit lieu de - Savigny, demandeur à l'encontre de Jehan Bailly, alias Valot dudit - Savigny _deffendeur_, à l'encontre duquel par la voix et organ de - honorable homme et saige M{r}. Benoit Milot d'Ostun, licencié en loys - et bachelier en décret, conseïllier de monseigneur le duc de - Bourgoingne, a été dit et proposé que le mardi avant Noel dernier - passé, _une truye_, et six coichons ses suignens, que sont - présentement prisonniers de ladite dame, comme ce qu'ils été prins en - flagrant délit, ont commis et perpetré mesmement ladicte truye murtre - et homicide en la personne de Jehan Martin en aige de cinq ans, fils - de Jehan Martin dudit Savigny, pour la faulte et culpe dudit Jehan - Bailly, alias Valot, requerant ledit procureur et promoteur desdites - causes d'office de ladite justice de madite dame, que ledit défendeur - répondit es chouses dessus dites, desquelles apparaissoit à - souffisance, et lequel par nous a esté sommé et requis ce il vouloit - avoher ladite truhie et ses suignens, sur le cas avant dit, et sur - ledit cas luy a esté faicte sommacion par nous juge avant dit, pour la - première, deuxiéme et tierce fois, que s'il vouloit rien dire pourquoi - justice ne s'en deust faire l'on estoit tout prest de les oïr en tout - ce qu'il vouldrait dire touchant la pugnycion et exécution de justice - que se doit faire de ladite truhie; veu ledit cas, lequel deffendeur a - dit et respondu qui'l ne vouloit rien dire pour le present et pour ce - ait esté procédé en la manière qui s'ensuit; c'est assavoir que pour - la partie dudit demandeur, avons esté requis instamment de dire droit - en ceste cause, en la présence dudit défendeur présent et non - contredisant, pourquoy nous juge, avant dit, savoir faisons à tous que - nous avons procédé et donné nostre sentence deffinitive en la manière - que s'ensuit; c'est assavoir que veu le cas lequel est tel comme a - esté proposé pour la partie dudit demandeur, et duquel appert à - souffisance tant par tesmoing que autrement dehuëment hue. _Aussi - conseil avec saiges et practiciens_, et aussi considéré en ce cas - l'usance et coustume du païs de Bourgoingne, aïant Dieu devant nos - yeulx, nous disons et pronunçons par notre dite sentence, déclairons - la tryue de Jehan Martin, de Savigny, estre confisquée à la justice de - Madame de Savigny, pour estre mise à justice et au dernier supplice, - et estre pendus par les pieds derriers à ung arbre esproné en la - justice de Madame de Savigny, considéré que la justice de madite dame - n'est mie présentement elevée, et icelle truye prendre mort audit - arbre esproné, et ansi le disons et prononçons par notre dicte - sentence et à droit et au regard des coichons de ladite truye pour ce - qui n'appert aucunement que iceuls coichons ayent mangiés dudit Jehan - Martin, combien que aient estés trovés ensanglantés, l'on remet _la - cause d'iceulx coichons_ aux tres jours, et avec ce l'on est content - de les rendre et bailler audit _Jehan Bailly_, en baillant caucion de - les rendre s'il est trové qu'il aient mangiers dudit Jehan Martin, en - païant les poutures, et fait l'on savoir à tous, sous peine de - l'amende et de 100 sols tournois qu'ils le dieut et déclairent dedans - les autres jours, de laquelle nostre dicte sentence, après la - prononciation d'icelle, ledit procureur de ladite dame de Savigny et - promoteur des causes d'office par la voix dudit maistre Benoist Milot, - advocat de ladite dame; et aussi ledit procureur a requis et demandé - acte de nostre dicte court à lui estre faicte, laquelle luy avons - ouctroyé, et avec ce instrument, je, Huguenin de Montgachot, clerc, - notaire publicque de la court de monseigneur le duc de Bourguoigne, en - la présence des tesmoings ci-dessus nommés, je lui ai ouctroyé, ce - fait l'an et jour dessus dit et présens les dessus tesmoings. _Ita - est._ Ainsi signe, Mongachot, avec paraphe, et de suite est écrit: - - _Item_, en oultre, nous juge dessus nommé, savoir faisons que - incontinent après nostre dicte sentence ainsi donnée par nous les an - et jour, et en la présence des temoings que dessus, avons sommé et - requis ledit Jehan Bailli, se il vouloit avoher lesdits coichons, et - se il vouloit bailler caucion pour avoir recréance d'iceulx; lequel a - dit et répondu qui ne les avohait aucunement, et qui ni demandait rien - en iceulx coichons; et qui s'en rapportoit à ce que en ferions; - pourquoy sont demeurez à la dicte justice et seignorie dudit Savigny, - de laquelle chouse ledit Huguenin Martin, procureur et promoteur des - causes d'offices, nous en a demandé acte de court, lequel lui nous - avons ouctroyé et ouctroyons par ces présentes, et avec ce ledict - procureur de ladicte dame, à moy notaire subescript, m'en demanda - instrument, lequel je luy ait ouctroyé en la presénce desdits - tesmoings cy-dessus nommés. - - _Item_, en après, nous Nicolas Quaroillon, juge avant dit, savoir - faisons à tous que incontinent après les chouses dessus dictes, avons - faict delivrer réalement et de fait ladicte truye à maistre Etienne - Poinceau, maistre de la haute justice, demeurant à Châlons-sur-Saône, - pour icelle mettre à exécucion selon la forme et teneur de nostre - dicte sentence, laquelle délivrance d'icelle trühie faicte par nous - comme dit est, incontinent ledit maistre Estienne a mené sur une - chairette ladicte truye à ung chaigne esproné, estant en la justice de - ladite dame Savigny, et en icelluy chaigne esproné, icelluy maistre - Estienne a pendu ladite truye par les piez derriers; en mectant à - exécution deue nostre dicte sentence, selon la forme et teneur de - laquelle délivrance et exécution d'icelle truye, ledit Huguenin - Martin, procureur de ladicte dame de Savigny nous a demandé acte de - nostre dicte court à lui estre faicte et donnée, laquelle luy avons - ouctroyée, et avec ce à moi, notaire subscript, m'a demandé instrument - ledit procureur à luy estre donnée, je luy ai ouctroyé en la présence - des temoings cy-dessus nommez, ce fait les au et jour dessus ditz. - Ainsi signé Mongachot, avec paraphe. - -Nearly a month later, on "the Friday after the Feast of the Purification -of Our Lady the Virgin" (which occurred on Feb. 2.), "the six little -porklets or sucklings" were brought to trial. The following is the _procès -verbal_. - - Jours tenus au lieu de Savigny, sur la chaussée de l'Estang dudit - Savigny, par noble homme Nicolas Quarroillon, escuier, juge dudit lieu - de Savigny, pour noble damoiselle Katherine de Barnault, dame dudit - Savigny, et ce le vendredy après la feste de la Purification Notre - Dame Vierge, présens Guillaume Martin, Guiot de Layer, Jehan Martin, - Pierre Tiroux et Jehan Bailly, tesmoings, etc. - - Veue les sommacions et réquisitions faicte par nous juge de noble - damoiselle Katherine de Barnault, dame de Savigny, à Jehan Bailly - alias Valot de advohé on repudié les coichons de la truye nouvellement - mise à exécution par justice à raison du murtre commis et perpetré par - la dicte truye en la personne de Jehan Martin, lequel Jehan Bailli a - esté remis de advoher lesdites coichons et de baillier caucion - d'iceulx coichons rendre, s'il estoit trouvé qu'ils feussions - culpables du délict avant dict commis par ladicte truye et de payer - les poutures, comme appert par acte de nostre dicte court, et autres - instrumens souffisans; pourquoi le tout veu en conseil avec saiges, - déclairons et pronuncons par nostre sentence deffinitive, et à droit: - iceulx coichons compéter et appartenir comme biens vaccans à ladite - dame de Savigny et les luy adjugeons comme raison, l'usence et la - coustume de païs le vueilt. De laquelle nostre dicte sentence, ledit - procureur de ladite dame en a demandé acte, de nostre dicte court a - luy estre donnée et ouctroyée. Avec ce en a demandé instrument à moy - notaire subscript, lequel il luy a ouctroyé en la présence des dessus - nommés. Signé Mongachot avec paraphe. - -[Extract from the archives of Monjeu and Dependencies, belonging to M. -Lepelletier de Saint-Fargeau. (Savigny-sur-Etang, boëte 25{e}, liasse 1, -2, & 3, etc.) _Vide_ Mémoires, cit., pp. 441-5.] - - -N - -Sentence pronounced April 18, 1499, in a criminal prosecution instituted -before the Bailiff of the Abbey of Josaphat, in the Commune of Sèves, near -Chartres, against a pig condemned to be hanged for having killed an -infant. In this case the owners of the pig were fined eighteen francs for -negligence, because the child was their fosterling. - - _Le lundi 18 avril 1499._ - - Veu le procès criminel faict par-devant nous à la requeste du - procureur de messieurs le religieux, abbé et convent de Iosaphat, à - l'encontre de Iehan Delalande et sa femme, prisonniers èsprisons de - céans, pour raison de la mort advenue à la personne d'une jeune - enfant, nommée Gilon, âgée de un an et demi ou environ; laquelle - enfant avoit eté baillée à nourrice par sa mère: ledict meurtre advenu - et commis par un pourceau de l'aage de trois mois ou environ, aulxdits - Delalande et sa femme appartenant; les confessions desdicts Delalande - et sa femme; les informations par nous et le greffier de ladite - jurisdiction faictes à la requête dudict procureur; le tout veu et en - sur ce conseil aulx saiges, _ledit Jehan Delalande et sa femme, avons - condampnés et condampnons en l'amende envers de justice de dix-huit - franz_, qu'il a convenus pour ce faire, tel que de raison, et à tenir - prison jusqu'à plein payement et satisfaction d'iceulx à tout le moins - qu'ils avoient baillé bonne et seure caution d'iceulx. - - _Et en tant que touche le dict pourceau_, pour les causes contenues - et établies audict procès, _nous les avons condampné et condampnons à - être pendu et executé par justice_, en la jurisdiction des mes dicts - seigneurs, par notre sentence définitive, _et à droit_. - - Donnè sous la contre scel aux causes dudict baillage, les an et jour - que susdicts. _Signé_ C. Briseg avec paraphe. - -[The complete record of this trial contains the minutest details of the -proceedings, ending with the execution of the pig, and was taken from the -archives of the Abbey Josaphat at the time of the Revolution by M. B., -Secretary-general of the department. Since then it has disappeared; but -this copy of the original, made at that time, is declared by M. Lejeune to -be perfectly exact. _Vide_ Mémoires, cit., pp. 434-5.] - - -O - -Sentence pronounced June 14, 1494, by the grand mayor of the church and -monastery of St. Martin de Laon, condemning a pig to be hanged and -strangled for infanticide committed on the fee-farm of -Clermont-lez-Montcornet. - - A tous ceulx qui ces présentes lettres verront ou orront, Jehan - Lavoisier licentie ez loix, et grand mayeur de l'église et monastère - de monsieur St. Martin de Laon, ordre de Prémontré, et les echevins de - ce même lieu; comme il nous eust été apporté et affirmé par le - procureur-fiscal ou syndic des religieux, abbé et convent de - Saint-Martin de Laon, qu'en la cense de Clermont-lez-Montcornet, - appartenant en toute justice haulte, moyenne et basse auxdits - relligieux, ung jeune pourceaulx eust éstranglé et _défacié_ ung jeune - enfant estant au berceau, fils de Jehan Lenfant, vachier de ladite - cense de Clermont, et de Gillon sa femme, nous advertissant et nous - requérant à cette cause, que sur ledit cas voulussions procéder, comme - justice at raison le désiroit et requerroit; et que depuis, afin de - savoir et cognoitre la vérité dudit cas, eussion ouï et examiné par - serment, Gillon, femme dudit Lenfant, Jehan Benjamin, et Jehan - Daudancourt, censiers de ladite cense, lesquels nous eussent dit et - affirmé par leur serment et conscience, que le lendemain de Pasques - dernier passé ledict Lenfant estant en la garde de ses bestes, ladicte - Gillon sa femme desjettoit de ladicte cense, pour aller au village de - Dizy ..., ayant délaissé en sa maison ledict petit enfant.... Elle le - renchargea à une sienne fille, âgée de neuf ans ... pendant et durant - lequel temps ladite fille s'en alla jouer autour de ladite cense, et - laissé ledit enfant couché en son berceau; et ledit temps durant, - ledit pourceaulz entra dedans ladite maison ... et défigura et mangea - le visage et gorge dudit enfant.... Tôt après ledit enfant, au moyen - des morsures et dévisagement que lui fit ledit pourceaulz, de ce - siecle trépassa: savoir faisons.... Nous, en detestation et horreur - dudit cas, et afin d'exemplaire et gardé justice, avons dit, jugé, - sentencié, prenoncé et appointé, que ledit pourceaulz _estant detenu - prisonnier_ et enferme en ladite abbaye, sera par le maistre des - hautes-oeuvres, pendu et estranglé, en une fourche de bois, auprès et - joignant des fourchee patibulaires et haultes justices desdits - relligieux, estant auprès de leur cense d'Avin.... En temoing de ce - nous avons scellé ces presentes de notre scel. - - Ce fut fait le quatorzième jour de juing, l'an 1494, et scellé en cire - rouge; et sur le dos est écrit: - - Sentence pour ung pourceaulz executé par justice, admené en la cense - de Clermont, et étranglé en une fourche les gibez d'Avin. - -[M. Boileau de Maulaville, in _L'Annuaire de l'Aisne 1812_, p. 88. _Vide_ -Mémoires, cit., pp. 428 and 446-7.] - - -P - -Sentence pronounced, March 27, 1567, by the royal notary and proctor of -the bailiwick and bench of the court of judicatory of Senlis, condemning a -sow with a black snout to be hanged for her cruelty and ferocity in -murdering a girl of four months, and forbidding the inhabitants of the -said seignioralty to let such beasts run at large on penalty of an -arbitrary fine. - - A tous ceulx qui ces présentes lettres verront, Jehan Lobry, notaire - royal et procureur au bailliage et siège présidial de Senlis, bailly - et garde et seigneurie de Saint-Nicolas d'Acy, les le dit Senlis, pour - M. M. les religieux, prieur et coivent du diet lieu, salut; savoir - faisons: - - Veu le procès extraordinairement fait à la requête du Procureur de la - seigneurie du dict Saint-Nicolas, pour raison de la mort advenue à une - jeune fille âgée de quatre mois ou environ, enfant de Lyénor Darmeige - et Magdeleine Mahieu sa femme, demeurant au dict Saint-Nicolas, - trouvée avoir esté mangée et devorée en la tete, main senestre et au - dessus de la mamelle dextre par une truye ayant le museau noire, - appartenant à Louis Mahieu, frère de la dite femme et son proche - voisin; - - Le procès verbal de la visitation du dict enfant en la presence de son - parrain et de sa marraine qui l'ont recogneu; - - Les informations faites pour raison du dit cas, interrogatoires des - dits Louis Mahieu et sa femme, avec la visitation faicte de la dicte - truye à l'instant du dit cas advenu et tout consideré en conseil, il a - été conclu et advisé par justice que POUR LA CRUAUTÉ ET FEROCITÉ - COMMISE PAR LA DITE TRUYE, elle sera exterminée par mort et pour ce - faire sera pendue par l'executeur de la haulte justice en ung arbre - estant dedans les fins et mottes de la dicte justice sur le grande - chemin rendant de Saint-Firman au dit Senlis, en faisant deffenses à - tous habitans et sujet des terres et seigneurie du dit Saint-Nicolas - de ne plus laisser échapper telle et semblables bestes sans bonne et - seure garde, sous peine d'amende arbitraire et de pugnition corporelle - s'ily échoit, sauf et sans préjudice à faire droit sur les conclusions - prinses par le dit Procureur à l'encontre des dits Mahieu et sa femme - ainsi que de raison, au témoin de quoy nous avon scellé les présentes - du scel de la dicte justice. - - Ce fu faist le jeudi 27{e} jour de Mars 1557 et exécuté ledit jour par - l'executeur de la haulte justice du dit Senlis. - -[Dom. Grenier, _Manuscrits de la Bibliothèque Nationale de Paris_, tome -xx. p. 87. Quoted by D'Addosio, who, however, confounds the prosecution of -1567 with that of 1499.] - - -Q - -Sentence of death upon a bull, May 16, 1499, by the bailiff of the Abbey -of Beaupré, for furiously killing Lucas Dupont, a young man of fourteen or -fifteen years of age. - - A tous ceux qui ces presentes lettres verront, Jean Sondar, Lieutenant - du Bailly du temporel de l'église & abbaye nôtre Dame de Beauprés de - l'ordre de Cisteaux, pour venerables & discretes personnes & mes - tres-honorez seigneurs, messeigneurs les religieux abbé & convent de - ladite abbaye, salut. Comme à la requeste du procureur de mesdits - seigneurs, & par leur justice temporelle qu'ils ont en leur terre & - seigneurie du Caurroy eût été nagaires prins & mis en la main d'icelle - leur justice ung thorreau de poil rouge, appartenant à Jean Boullet - censier & fermier de mesdits seigneurs, demeurant en leur maison & - cense dudit Caurroy, lequel thorreau étant aux champs & sur le - territoiiere d'icelle église, auroit par furiosité occis & mis à mort - un joine fils, nommé Lucas Dupont, de l'âge de quatorze à quinze ans, - ou environ, serviteur dudit censier, lequel il avoit mis à la garde de - ces bestes à corne, entre lesquelles estoit ledit thorreau. Duquel - thorreau ledit procureur de mesdits seigneurs requeroit la justice - estre faite, & qu'il fut executé jusqu'à mort inclusivement par la - justice de mesdits seigneurs pour occasion de icelui crimme de omicide - & de la detestation d'iceluy. Sur quoy enqueste & information eussent - été faites de la forme & maniere iceluy homicide, par laquelle ledit - procureur nous eust requis sur ce luy estre fait droit. Savoir faisons - que veu laditte enqueste & information & sur tout en conseil & advis, - nous par nostre sentence & jugement, avons dies & jugié, que pour - raison de l'omicide, dont dessus est touchié, fait par ledit thorreau - en la personne d'iceluy Lucas, & pour la detestation du crime d'iceluy - homicide, ledit thorreau nommé confisqué à mesdits seigneurs sera - executé jusques à mort inclusivement par leurdite justice, & pendu à - une fourche ou potence es mettes de leurdite terre & seigneurie dudit - Caurroy, aupres du lieu ou solloit estre assise la justice. Et ad ce - le avons condamné & condamnons. En tesmoing de ce avons mis nostre - scel à ces lettres qui furent faites & pronunchiés audit lieu du - Caurroy en la presence de Guillaume Gave du Mottin, Jehan Custien - l'aisné, Jehan Henry, Jehan Boullet, hommes & subjets de mesdits - seigneurs, Jehan Charles, & Clement le Carpentier, & plusieurs autres - les seizieme jour de May l'an mil quatre cens quatre-vingt-dix-neuf. - Ainsi signé, Ileugles, ad ce commis. - -[The original records of this trial for homicide are in the archives of -the Abbey of Beaupré. Vide _Voyage Littéraire de deux Religieux -Benedictins de la Congregation de St. Maur_. Seconde Partie, pp. 166-7. -Paris, 1717. The Benedictins were Dom. Edmond Martene and Dom. Ursin -Durand.] - - -R - -Scene from Racine's comedy _Les Plaideurs_, in which a dog is tried and -condemned to the galleys for stealing a capon. - -After the accused had been found guilty, his counsel brings in the puppies -and thus appeals to the compassion of the court: - - "Venez, famille desolée; - Venez, pauvres enfants qu'on veut rendre orphelins; - Venez faire parler vos esprits enfantins. - Oui, messieurs, vous voyez ici notre misère; - Nous sommes orphelins, rendez-nous notre père, - Notre père par qui nous fûmes engendrés, - Notre père qui nous.... - - DAUDIN. - - Tirez, tirez, tirez. - - L'INTIME. - - Notre père, messieurs.... - - DAUDIN. - - Tirez donc, Quels vacarmes! - Ils ont pissé partout. - - L'INTIME. - - Monsieur, voyez nos larmes. - - DAUDIN. - - Ouf! je me sens dejà pris de compassion. - Ce que c'est qu' à propos toucher la passion! - Je suis bien empêché. La vérité me presse; - Le crime est avéré, lui-même il le confesse. - Mais, s'il est condamné, l'embarras est égal; - Voilà bien des enfants réduits à l'hôpital." - _Les Plaideurs_, Act III, sc. 3. - - -S - -Record of the decision of the Law Faculty of the University of Leipsic -condemning a cow to death for having killed a woman at Machern near -Leipsic, July 20, 1621. - - Ao 1621 den 20 July ist Hanss Fritzchen weib Catharina alhier zu - Machern wohnende von Ihrer eigen Mietkuhe,[11] da sie gleich - hochleibss schwanger gang, auff Ihren Eigenen hofe zu Tode gestossen - worden. Vber welch vnerhörten Fall der Juncker Friederich von - Lindenau, als Erbsass diesess ortes, in der Jurisstischen Facultet zu - Leipzig sich darüber dess Rechtes belernet: Welche am Ende dess - Vrtelss diese wort also aussgesprochen: So wird die Kuhe, als - abschewlich thier, an Einen abgelegenen öden ort billig geführet, - daselbst Erschlagen oder Erschossen, vnnd vnabgedecht begraben. - Christoph Hain domalss zu Selstad wohnend hat sie hinder der - Schäfferey Erschlagen vnd begraben, welchess geschehen den 5. Augusti - auff den Abend, nach Eintreibung dess Hirtenss zwischen 8 vnd 9 vhren. - -[Extract from the parish-register of Machern, near Leipsic, printed in -_Anzeiger für Kunde der deutschen Vorzeit_. No. 4, April 1880, col. 102.] - - - - -BIBLIOGRAPHY - - -ABELE VON LILIENBERG, MATTHIAS: Metamorphosis Telae Judiciariae, Das ist: -Seltsame Gerichts-Händel, etc.; 8th ed., Nürnberg, 1712. 1st ed., 1667. -The funny incidents narrated in this work are cited as "queer judicial -procedures" in Joh. Weidneri Apophthegmata, Part III., No. 69. Abele was -evidently a great humorist, and must have been a jolly member of the -"Hochlöbl. Fruchtbringende Gesellschaft," to which he belonged. - -ADDOSIO, CARLO D': Bestie Delinquenti. Napoli, 1892. - -AGNEL, EMILE: Curiosités judiciaires et historiques du Moyen-Âge. Paris, -1858. Only Part I. published. - -AMIRA, KARL VON: Thierstrafen und Thierprocesse. Innsbruck, 1891. Printed -originally in Mittheilungen des Instituts für Oestterreichische -Geschichtsforschung, xii., pp. 546-601. - -ANGELIS, FRANCISCO GIUSEPPE DE: De Delictis et Poenis. Opera Omnia. Vol. -i., p. 76. Napoli, 1783. - -Anzeiger für Kunde der deutschen Vorzeit, xxvii. 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No. 68. 1610. - -DE WINDE: Byzonderheden uit de Geschiedeniss van het strafregt in de -Nederlanden. Middelburg, 1827. - -ZEROLA, THOMAS: Praxis Episcopalis. Sub verbo Superstitio. Venet. 1599. - - - - -INDEX - - - Abbott, Rev. Lyman, regards bad impulses as suggestions of evil - spirits, 76 - - Achan, his severe punishment by Joshua, 180 - - Addosio, Carlo d', his _Bestie Delinquenti_ cited, 1, 4; - his list of animal prosecutions, 135; - on pigs as a public nuisance in Italy, 159 - - Æschines, cited, 172 - - Æschylus, his _Choephoroi_ cited, 174 - - Ahuramazda, 57, 61, 82, 176 - - Alard, Jean, burned alive as a Sodomite for coition with a Jewess, 153 - - Altiat, his poem quoted, 93 - - Amira, Prof. Karl von, his _Thierstrafen und Thierprocesse_ cited, 1-3, - 137 - - Anathemas, only effective when formally complete, as with all - incantations and excommunications, 4, 36; - citations from the Bible in proof of their power, 25; - render an orchard barren and expel eels and blood-suckers from Lake - Leman, 27; - turn white bread black to punish heresy, 28; - fatal to swallows and flies, which disturb religious services, 28, 29; - sold by the Pope, 30; - hurled against noxious vermin, 37; - made more effective by the prompt payment of tithes, 37; - differ from excommunications, 51-54; - superseded in Protestantism by prayer and fasting and in science by - Paris green, 53 - - Animals, prosecuted by civil and ecclesiastical courts, 2; - office of the Church in repressing articulate and rodent, 3, 5; - as satellites of Satan or agents of God, 5, 6, 52-57, 67; - personification of, 10, 11; - their competency as witnesses, 11; - origin of their judicial prosecution, 12; - as born criminals, 14; - tendency of modern penology to efface the distinction between men and, - 14, 193; - instances of their criminal prosecution, 16, 18, 21, 37-50, 93-124, - 134-157, 160-163; - methods of procedure against, 31; - whether legally laity or clergy, 32; - punitive and preventive prosecution of, 33; - their consciousness of right and wrong, 35, 247; - false conception of the purpose of their prosecution, 40; - can be anathematized, but not excommunicated, 51; - items of expense in prosecuting, 49, 138, 140-143; - not mere machines, 66; - in folk-lore, 84; - worship of, 85; - imperfect lists of prosecuted, 135-137; - burned and buried alive, 138; - put to the rack to extort confession, 139; - confiscation of valuable, 164, 189; - unclean flesh of executed, 169; - imputed criminality of, 177; - criminals as ferocious, 212; - mental and moral qualities of men and, 234; - six categories of their criminal offences, 235; - the safety of society the supreme law in the judicial punishment of - men and, 247-252 - - Anatolus, his "Geoponics," 133 - - Angel, Emile, cited, 124 - - Anglo-Saxon law, its retributive character, 168; - its cruel doctrine of accessories, 178; - on tainted swords, 187 - - Angrô-mainyush, 57, 59, 61, 82 - - Anthony, St., patron of pigs, 158 - - Anthropologists, criminal researches of 211, 215 - - Aquinas. _See_ Thomas - - Arcadius, his atrocious edict, 179 - - Ashes, modern and mediæval use of vermifugal, 53 - - Augustine, St., cited, 94, 106 - - _Aura corrumpens_ in houses and stalls, 8 - - Aurelian, Father, on diabolical possession, 75 - - Avesta, on exorcisms, 36; - on good and evil creations, 57; - on mad dogs, 176 - - Ayrault, Pierre, his protest against animal prosecutions, 109 - - Azpilcueta, Martin. _See_ Dr. Navarre. - - - Baal-zebub (Beelzebub), fly-god, 84; - his preference for black beasts, 165 - - Bailly, Gaspard, his _Traité des Monitoires_ cited, 52, 92-108 - - "Basilisk-egg," 10 - - Basilius, St., his insect-expelling girdle, 136 - - Basilovitch, Ivan, his conception of retributive justice, 183 - - Bassos, Kassianos, prefers rat-bane to adjuration, 132 - - Beasts, sweet and stenchy, 55 - - Bees, tainted honey of homicidal, 9 - - Bell, banished to Siberia by the Russian Government, 175 - - Benedikt Prof., on the brain-formation of criminals, 212 - - Bernard, Claude, his idea of the physiologist, 245 - - Bernard, St., kills flies by cursing them, 28 - - Bernardes, Manoel, his _Nova Floresta_, 124 - - Berriat-Saint-Prix, his valuable researches, 2, 17, 20; - list of prosecuted animals, 135-137 - - Bichat, his defective cranium, 217 - - Bischofberger, Dr. Theobald, his curious theory of the effects of - unexpiated crime on persons and property, 6-8; - his recent brochure in defence of exorcisms, 73 - - Bischoff, Prof., his hobby refuted by the weight of his own brain, 218 - - Blackstone, on deodands, 186, 189, 192 - - Blood-letting, as a panacea in law and medicine, 194 - - "Blue Laws," an advance in penal legislation, 209 - - Bodelschwingh, his _bacillus infernalis_, 91 - - Boehme, Jacob, his definition of magic, 127 - - Boër, Nicolaus, on cohabitation with a Jewess as sodomy, 153 - - Bogos, homicidal beasts executed by the, 155 - - Bonnivard, François, presides as judge in a trial of vermin, 38 - - Borromeo, Carlo, his cruelty in punishing heresy, 208 - - Bougeant, Père, his _Amusement Philosophique_ cited, 66-69; - 80-86, 88-90, 92 - - Bracton, 167; - on deodands, 186 - - Brain, its size not always a measure of mental capacity, 217-219 - - Browne, Dr. William Hand, cited, 187 - - Buggery, instances of this "nameless crime," 147-153; - she-ass acquitted and man condemned to death for, 150; - in the Carolina punished with death by fire, 151; - in the Mosaic law, 152; - sexual intercourse with a Jewess regarded as, 153 - - Bull, executed for murder, 161 - - - Calvin, his conception of God, 59 - - Canute, King, 178 - - Carolina, the, its severe penalties, 182 - - Carpzov, Benedict, on sodomy, 151 - - Cattle, bewitched by bad air, 8 - - Cervantes, 167 - - Character, factors in the formation of, 219; - responsibility for, 239, 243 - - Charcot, Dr., on the curative power of faith, 80, 225 - - Chassenée, Bartholomew, his _Consilia_, 2, 21-23; - distinguished as a defender of prosecuted rats, 18; - equal rights of rats and Waldenses recognized by, 20; - his erudition, 24; - his absurd deductions, 26; - regards animals as laity in the eye of the law, 32 - - Chinese, recent beheading of idols for murder, 174 - - Church, the, its treatment of noxious insects as incarnations of Satan - and as agents of God, 3-6; - capital punishment never inflicted by, 31; - its power to stay the ravages of vermin unquestioned, 50 - - Cicero, cited, 22, 101; - his approval of atrocious penalties, 178 - - Cock, burned at the stake for laying eggs, 10, 11, 162; - nature and origin of its supposed eggs, 163-5 - - Cockatrice, 12, 163 - - Coleridge, his definition of madman, 228 - - Corpses, prosecuted and executed, 110, 198, 199; - cannot inherit, 110 - - "Corruption of blood," in theology and law, 181 - - Courcelle-Seneuil, his view of prisons, 212 - - Cows, executed for homicide, 169 - - Cranks, execution of, 249-251 - - Cretella, 17 - - Cretins, their brains not always abnormal, 219; - sentenced to death, 251 - - Criminality, examples of imputed, 177-185; - ancient and mediæval conceptions of, 200; - punished for the safety of society, 211, 248; - compared to vitriol, 212; - supposed physical indices of, 213-217; - casual and constitutional, 214-223; - ativism the source of, 212, 215; - the result of hypnotism, 223-225; - due to many uncontrollable conditions, 230; - motives underlying animal, 235; - animals conscious of, 247; - contagiousness of, 252, 256 - - Crollanza, his record of the prosecution of caterpillars, 122 - - Crosiers, vermifugal efficacy of, 30 - - Cybele, invoked against vermin, 133 - - - Damhouder, Jacobus, picture of animal crimes in his _Rerum Criminalium - Praxis_, 16; - citations from this work, 109, 146; - regards sexual intercourse with Jews, Turks, and Saracens as sodomy, - 153 - - Dasturs, Parsi, Zarathushtra's teachings degraded by the, 59 - - Demosthenes, cited, 172 - - Deodands, nature of, 186-190, 192; - abolished in England under Queen Victoria, 192 - - Devils, their damage to landed property, 7; - multiplied by the spread of Christianity, 13, 80; - destined to eternal torments after the Last Judgment, 68-70; - incarnate in every babe, 70; - maladies produced by, 72; - modern inventions the devices of, 229 - - Didymos, his "Geoponics," 133 - - Dimitri, Prince, bell banished to Siberia for rejoicing over his - assassination, 175 - - Dogs, trial and execution of mad, 176; - crucified in Rome for imputed crime, 177 - - Döpler, Jacob, on sodomy, 152; - on _Lex talionis_, 182; - on vampires, 197 - - Dove, symbol of the Holy Ghost, 57 - - Draco (Drakôn), his law punishing weapons, 172 - - Dreyfus, his prosecution instigated by a sensational novel, 253-255 - - Ducol, Pierre, prosecutor of weevils, 38 - - Dumas, his _Count of Monte Christo_ cited, 240 - - Duret, Jean, his _Treatise on Pains and Penalties_, 108 - - - Ecclesiastical tribunal, an, rejects the Mosaic law and discusses crime - from a psychiatrical point of view, 170 - - Eldrad, St., expels serpents, 50 - - Electricity, execution by, 210 - - Elk, as demon, 90 - - Erechtheus, punishment of deadly weapons, 172 - - Erinnys, appeasing the, 174 - - Escheat, in Scotch law, 189 - - Eusebius, describes hell as very cold, 105 - - Eustace, St., 56 - - Evolution, dogma of original sin supplanted by the doctrine of, 232 - - Excommunications, pronounced against insects by the Church, 3; - sold at Rome, 30; - properly speaking, animals not subject to, 51, 100; - comical survivals of, 128. - _See_ Anathemas - - Exorcisms, their efficiency recognized by Heidelberg professors, 27; - applied as plasters, 72; - superseded by conjurations among Protestants, 125; - by Mohammedans, 137 - - - Falcon, Pierre, defender of weevils, 38 - - _Felo de se_, a sort of treason, 190. - _See_ Suicide - - Feuchtersleben, Baron Von, records cases of morbid imitation, 253 - - Field-mice, conjuration of, 133 - - Flesh of executed animals tainted, 169 - - Flies as demons, 28, 86 - - Florian, St., the protector of houses from fire, 136 - - Fly-flaps, papal, 29 - - Formosus, Pope, his corpse tried and condemned for usurpation, 198 - - Foscolo, Ugo, his cranium that of an idiot, 218 - - Fox, diabolical nature of the, 56 - - Frederic the Great, his penal reforms, 207 - - Fricker, Thüring, doctor of laws, chancellor and prosecutor of inger, - 116 - - - Gadflies, episcopal rescript against, 124 - - Galton, on heredity, 239 - - Gambetta, his small and abnormal brain, 217 - - Geese, sacred, rewarded at Rome for the vigilance of their foremothers, - 177 - - Genius, to madness close allied, 228 - - Görres, recent case of conjuration recorded by, 125 - - Gratiolet, on the brain of the "Hottentot Venus," 218 - - Greeks, ancient, ascribed pestilence to the miasma of unexpiated murder, - 9, 174 - - Gregory of Tours, on bronze dormice and serpents as talismans, 132 - - Greysser, Daniel, the efficiency of bans not supernatural, 128 - - Gross, his mis-statement concerning the cock of Bâle, 162 - - Guiteau, deterrent effect of his execution, 250 - - - Harpokration, Valerius, cited, 172 - - Harrison, Miss, cited, 187 - - Hart, symbolism of the, 56 - - Hawks, dead, as protectors of hens, 252 - - Hemmerlein, Felix. _See_ Malleolus - - Hens, crowing, 10 - - Heredity, its predetermining influence as viewed by theologians and - scientists, 232 - - Heymanns, Mynheer, on responsibility for character, 243 - - Hierarchies, their failure in civil government, 249 - - Honorius, his atrocious edict, 179 - - Horses, condemned to death for homicide, 162 - - Hubert, St., 56 - - Hugon, St., expels venom from serpents by excommunication, 103 - - Hunters among savages, their superstitious fear of killing wild - animals, 174 - - Hypnotism, its causal relation to crime, 223-226; - as the basis of the witchcraft delusion, 225 - - - Idols, decapitation of, 174 - - Inger, prosecuted and put under ban, 113-115; - not in Noah's Ark, 120 - - Insanity, degrees of, 200-203; - in Italian and German law, 204-206; - difficulty of defining, 226-228; - in English law, 246; - moral, 250; - as a shelter for crime, 256 - - Insects, prosecution of, 37, 41-49; - incarnations of demons, 86 - - Italy, palliation of crime in, 203, 204 - - - Jeanneret, Marie, her toxicomania, 240-246 - - Jews, in Christian legislation on a par with beasts, 152, 165 - - John the Lamb, his curse fatal to fish, 28 - - Jonson, Ben, cited, 130 - - Jordan, Father, casts out devils with Lourdes water in 1887, 74 - - Jörgensen, cited, 17 - - Joshua, his penal cruelty, 180 - - King Mode, his discourse with Queen Reason, 55 - - Kirchenheim, Prof. Von, urges reform of our penal codes, 219 - - Koran, the, on the punishment of beasts, 171 - - Kukis, destroy homicidal trees, 171 - - - Laas, his definition of judicial punishment, 238 - - Lacassagne, his six categories of crime, 235 - - Langevin, Pierre Gilles, fresco of the execution of a sow described by, - 141 - - Lapeyronie, his dissertation proving that cocks never lay eggs, 163 - - Le Bon, on hereditary criminality, 223 - - Leipsic, decision of the Law Faculty concerning a homicidal cow, 169 - - Leo XIII., his exorcism of Satan and apostate angels, 73 - - Letang, Louis, causal relation of his novel to the Dreyfus affair, 254 - - Lex talionis, striking applications of this oldest form of penal - justice, 167; - inflicts horrible mutilations, 182 - - Lilienberg, Mathias Abele Von, his record of a dog sentenced to prison, - 175 - - Liszt, Prof. Von, on retributive and preventive penalties, 237 - - Locusts, expelled by exorcisms and aspergeoires, 3, 64; - dispersed and destroyed by excommunication, 22, 93, 94; - prosecution of, 95-108, 136 - - Lohbauer, Pater Franz Xaver, ascribes nervous disease to diabolical - possession, 71 - - Lombroso, on animals as born criminals, 14; - opposed to trial by jury, 185; - regards tattooing, dark thick hair and thin beards, as signs of - criminality, 213; - on ativism as the source of crime, 215; - innate criminality not eradicated by education, 223; - compares the capital punishment of cretins and cranks to that of - animals, 251 - - Lucifer, writhes under the water of Lourdes, 74 - - Lycia, punished by imputation, 180 - - - Majolus, cited, 86 - - Maledictions. _See_ Anathemas - - Malleolus, Felix, his theory of exorcisms endorsed by Heidelberg - professors, 27; - records a prosecution of Spanish flies, 110; - his formula for banning serpents, 121 - - Mangin, Arthur, cited, 16, 139 - - Manicheans, their doctrine of good and evil, 60 - - Manouvrier, Dr., likens Gambetta's skull to that of a savage, 217 - - Mantegazza, Prof., his "tormentatore," 245 - - Manu, Institutes of, 168 - - Marro, on metaphors as facts, 216 - - Mather, Cotton, records the execution of a pious Sodomite and eight - beasts, 148 - - Ménebréa, M. L., 2, 17; - his theory untenable, 40 - - Mephistopheles, the lord of rodents and vermin, 85 - - Mithridates, experiments with poisons, 244 - - Moles, prosecution of, 111-113 - - Monks, as landed proprietors in France, 158 - - Monomania, frequency of, 227 - - Morel, Claude, defender of weevils, 38 - - Mornacius, his record of mad dogs sentenced to death, 176 - - Morselli, Prof., on the causes of suicide, 229 - - Mosaic law, the, rejected by an ecclesiastical court, 170; - barbarity of, 167, 180 - - Murder, miasma of, 9, 174; - weapons tainted by, 187-190 - - Mutilations, in accordance with the Lex talionis, 176, 182 - - Mythology, monstrosities and metamorphoses of classical, 64; - in modern life, 228 - - - Naquet, regards criminals as no more culpable than poisons, 212 - - Narrenkötterlein, dog sentenced to a, 175 - - Nature, imperfection of, 61 - - Navarre, Dr., regards fish as cacodemons, 90 - - Nebuchadnezzar, a satanic metamorphosis, 63 - - Nikôn, his statue punished for manslaughter committed in self-defence, - 172 - - Noah, God's covenant with him required the capital punishment of beasts, - 168 - - Novels, morbific influence of sensational, 253 - - Numa Pompilius, quoted, 106; - his law for protecting boundary stones, 183 - - - Origen, believed in the ultimate redemption of Satan, 68 - - Osenbrüggen, Eduard, his theory of the personification of animals, 10, - 17 - - Ovid, quoted, 101, 103 - - Oxen, executed, 168; - punished although innocent, 183 - - - Pachacutez, barbarous code of this Peruvian Justinian, 179 - - Papal See, trial and punishment of corpses by the, 198 - - Pape, Guy, cited, 108 - - Paracelsus, on the magnetic power of the will, 126 - - Pardoning power, exercise of the, 248 - - Parsis, their Dasturs, 59; - co-workers of Ahuramazda, 61, 82; - no doctrine of atonement, 63 - - Pasteur, exterminates noxious microbes, 62 - - Patriotism as a perverter of justice, 185 - - Pausanias cited, 172 - - Penology, man and beast in modern, 14, 193; - mediæval and modern, 15, 200, 206-210; - in Italy and Germany, 203-206; - brutality of mediæval, 206-209; - moral and penal responsibility, 210; - still inchoate, 15, 219-223, 257; - deterrent aims of, 211, 248, 249; - law of the survival of the fittest in, 221-223; - punitive and preventive, 237; - its relation to psycho-pathology, 248 - - Pereira Gomez, forerunner of Descartes, 66 - - Perjury, retaliative punishment of, 182 - - Perrodet, Jean, defender of inger, 118 - - Phlebotomy. _See_ Blood-letting - - Pico di Mirandola, quoted, 103 - - Piety, market value of, 7 - - Pigs. _See_ Swine - - Pirminius, St., his anathema of venomous reptiles, 29 - - Plato, his theory of creation, 59; - on homicidal animals, 173; - on retributive and preventive punishment, 237 - - Pliny, quoted, 103 - - Pollux, Julius, quoted, 172 - - Potter, a pious Sodomite executed, 148 - - Predestination in theology and science, 232-234 - - Prussia, barbarous punishments, 180; - opposed to reform, 205 - - Prytaneion (Prytaneum), condemned inanimate objects for crime, 172; - but not corpses, 199 - - Pufendorf, Samuel, on contagiousness in crime, 256 - - Puritans, their penal enactments, 209 - - Pythagoras, his doctrine of transmigration, 87 - - - Queen Reason, her discourse on animals in reply to King Mode, 56-58 - - - Racine, his caricature of beast trials in _Les Plaideurs_, 166, 361 - - Ram, banished to Siberia, 175 - - Randolph, his allusion to rhyming rats, 130 - - Rats, prosecution of, 18-21, 136; - friendly letters of advice to, 129; - Irish custom of rhyming, 130 - - Raven, an imp of Satan, 57 - - Renaud d'Alleins, on equal rights of Waldenses and rats, 20 - - Responsibility, moral and penal, 210 - - Reusch, Prof. Dr. Fr. Heinrich, denounces bishops as promoters of - superstition, 14 - - Ro-ro-ro-ro, an anti-semitic devil cast out in 1842, 73 - - Rosarius, Hierolymus, describes the exposure of crucified lions and - gibbeted wolves as a warning to their kind, 251; - regards animals as often more rational than men, 252 - - - Satan, his earthly sovereignty, 60, 70; - the doctrine of his final redemption, 68 - - Schilling, on the prosecution of inger, 113, 120 - - Schläger, cited, 176 - - Schleswig, its punishment of homicidal timber, 187 - - Schmid, Bernard, his sermon on the devastations by inger, 113-115 - - Scholasticism, quiddities of, 33 - - Schopenhauer, his theory of the will, 127; - man's responsibility for character alone, 239, 243 - - Schwabenspiegel, barbarity of this old German code, 178 - - Schwarz Mining, prosecutor of moles, 112 - - Schweinfurter Sauhenker, origin of the term, 147 - - Serpents, destroyed by St. Eldrad, 51; - freed from poison by St. Hugon, 103 - - Shakespeare, alludes to "be-rhymed" rats, 130; - and a wolf on the gallows, 157 - - Silius Italicus, quoted, 103 - - Simon, Max, on the morbid spirit of imitation, 253 - - Sociology, its influence on criminal jurisprudence, 238 - - Socrates, on self-perfection, 234 - - Sodomy. _See_ Buggery - - Soldan, cited, 17 - - Sparrows, put under ban by a Protestant parson, 128 - - Stephen VI., Pope, adjures locusts, 65; - prosecutes the corpse of his predecessor, 198; - strangled in prison, 199 - - Suicide, punishment of the wife and children of a, 190; - condemned as a crime and also recognized as a right, 191, 192; - due to manifold influences, 229 - - Superstition, fostered by bishops and Jesuits, 14 - - Swallows, anathematized for chattering in church, 28 - - Swine, execution of, 16, 140-145, 149, 153-157, 161, 169; - as stenchy beasts peculiarly attractive to devils, 56, 165; - Gadarene, 69, 91, 165 - - Swords, tainted, 187 - - - Taine, his definition of man, 214 - - Tarde, defines the mob as a mad beast, 236 - - Tatian, his fellow-citizen punished for his offences, 180 - - Tattooing, not peculiar to criminals, 213 - - Termites, prosecuted by Franciscans in Brazil and praised by their - defender as more industrious than the friars, 123 - - Tertullian, quoted, 106 - - Theognis, his bust punished for murder, 172 - - Thomas à Becket, his bones burned by Henry VIII., 198 - - Thomas Aquinas, regarded animals only as diabolical incarnations, 53-55, - 88, 101, 103 - - Thurneysser, his bottled scorpions and elk feared as demons, 90 - - Tithes, importance of the prompt payment of, 37, 94, 107 - - Tobler, G., on animal prosecutions in Switzerland, 1, 170 - - Treason, barbarously punished by Roman, Prussian, and Judaic law, - 179-181 - - Trench, Richard Chevenix, his justification of the cursing of the - fig-tree, 25 - - Treufels, Richard, his belief in the exorcism at Wemding in 1891, 75 - - Tribunals, proper office of criminal, 211, 232, 248 - - Tritheim, on Satan's invisible apparition, 166 - - Tschech, executed, and his innocent daughter exiled for his crime, 179 - - Türler, records the rejection of the Mosaic law by the ecclesiastical - court of Berne, 170 - - - Vampires, superstitions concerning, 195-198 - - Vendetta, in semi-civilized communities, 178 - - Venidad, quoted, 63 - - Ventilation, "bewitched kine" the result of bad, 8 - - Vermin. _See_ Insects - - Virgil, quoted, 26 - - - Weevils, prosecuted for damage to vineyards, 38-49 - - Wemding, recent case of diabolical possession in, 75 - - Were-wolves, incarnate ghosts, 195; - decree for their extermination, 198 - - _Werther_, Goethe's, sentimentalism and suicidism produced by, 253 - - Winterstetter, Georg, his rescript concerning gadflies, 125 - - Witches in Judaic and mediæval law, on a par with animals, 145; - rendered harmless by burning, 196 - - Worms, Council of, its decree concerning tainted honey, 9 - - - Zarathushtra (Zoroaster), his ethics and its workings, 57-59 - - Zoöpsychology, in its relation to anthropopyschology and criminology, - 237 - - Zupetta, on partial vitiation of mind, 201 - - -_Richard Clay & Sons, Limited, London and Bungay._ - - - - -FOOTNOTES: - -[1] The name is also spelled Chassanée and Chasseneux. In the Middle Ages, -and even as late as the end of the eighteenth century, the orthography of -proper names was very uncertain. - -[2] "Item: a été délibéré que la ville se joindra aux paroisses de cette -province qui voudront obtenir de Rome une excommunication contre les -insects et que l'on contribuera aux frais au pro rata." - -[3] These animals are spoken of as _unvernünftige Thierlein genannt -Lutmäuse_. _Lut_ might be derived from the Old German _lût_ (_Laut_, -Schrei), in which case _Lutmaus_ would mean shrew-mouse; but it is more -probably from _lutum_ (loam, mould), and signifies mole or field-mouse. -Field-mice are exceedingly prolific rodents, and in modern as well as in -mediæval times have often done grievous harm to husbandry and -arboriculture by consuming roots and fruits and gnawing the bark of young -trees. The recklessness of hunters in exterminating foxes, hedgehogs, -polecats, weasels, buzzards, crows, kites, owls and similar beasts and -birds, which are destructive of field-mice, has frequently caused the -latter to multiply so as to become a terrible plague. This was the case in -England in 1813-14, and in Germany in 1822, and again in 1856. - -[4] The first part of this treatise, consisting of seventeen chapters, -discusses the different kinds of "monitoires" and their applications. Only -the second part, describing the legal procedure, is here printed. - -[5] A few early instances of excommunication and malediction, our -knowledge of which is derived chiefly from hagiologies and other legendary -sources, are not included in the present list, such, for example, as the -cursing and burning of storks at Avignon by St. Agricola in 666, and the -expulsion of venomous reptiles from the island Reichenau in 728 by Saint -Perminius. - -[6] This case is probably identical with and an adjournment of that of -1478. - -[7] Identical with the sentences covering the period of 1500-1530. - -[8] In this latest record of such prosecutions a man named Marger was -killed and robbed by Scherrer and his son, with the fierce and effective -co-operation of their dog. The three murderers were tried and the two men -sentenced to lifelong imprisonment, but the dog, as the chief culprit, -without whose complicity the crime could not have been committed, was -condemned to death. - -[9] In modern French _pendard_ means hang-dog. M. Lejeune states that he -can recall no other instance of its use as synonymous with bourreau or -hangman. Perhaps a facetious clerk may have deemed it applicable to a -person whose office was in the present case that of a hang-pig. - -[10] Under this term are included the dean, canons, and chapter of the -Cathedral of Chartres. - -[11] _Mietkuhe_, a cow pastured or wintered for pay. - - - - -Transcriber's Notes: - -Passages in italics are indicated by _italics_. - -Superscripted characters are indicated by {superscript}. - -The original text includes Greek characters that have been replaced with -transliterations in this text version. - -The original text includes a Maltese Cross symbol that is represented as -[+] in this text version. - - - - - - -End of the Project Gutenberg EBook of The Criminal Prosecution and Capital -Punishment of Animals, by Edmund P. 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