The Criminal Prosecution and Capital Punishment of Animals

Animals were put on a par with old crones in bearing their full share of persecution during the witchcraft delusion. Pigs suffered most in this respect, since they were assumed to be peculiarly attractive to devils, and therefore particularly liable to diabolical possession, as is evident from the legion that went out of the lunatic and were permitted, at their own request, to enter into the Gadarene herd of swine. But Beelzebub did not disdain to become incarnate in all sorts of creatures, such as cats, dogs of high and low degree, wolves, night-birds and indeed in any beast, especially if it chanced to be black. Goats, it is well known, were not a too stinking habitation for him, and even to dwell in skunks he did not despise. The perpetual smell of burning sulphur in his subterranean abode may render him proof against any less suffocating form of stench. The Bible represents Satan as going about as a roaring lion; and according to the highest ecclesiastical authorities he has appeared visibly as a raven, a porcupine, a toad and a gnat. Indeed, there is hardly a living creature in which he has not deigned to disport himself from a blue-bottle to a bishop, to say nothing of his “appearing invisibly at times” (aliquando invisibiliter apparens), if we may believe what the learned polyhistor Tritheim tells of his apparitions. As all animals were considered embodiments of devils, it was perfectly logical and consistent that the Prince of Darkness should reveal himself to mortal ken as a mongrel epitome of many beasts – snake, cat, dog, pig, ape, buck and horse each contributing some characteristic part to his incarnation.

It was during the latter half of the seventeenth century, when, as we have seen, criminal prosecutions of animals were still quite frequent and the penalties inflicted extremely cruel, that Racine caricatured them in Les Plaideurs, where a dog is tried for stealing and eating a capon. Dandin solemnly takes his seat as judge, and declares his determination to “close his eyes to bribes and his ears to brigue.” Petit Jean prosecutes and L’Intime appears for the defence. Both address the court in florid and high-flown rhetoric and display rare erudition in quoting Aristotle, Pausanias and other ancient as well as modern authorities. The accused is condemned to the galleys. Thereupon the counsel for the defendant brings in a litter of puppies, pauvres enfants qu’on veut rendre orphelins, and appeals to the compassion and implores the clemency of the judge. Dandin’s feelings are touched, for he, too, is a father; as a public officer, also, he is moved by the economical consideration of the expense to the state of keeping the offspring of the culprit in a foundling hospital, in case they should be deprived of paternal support. To the contemporaries of Racine the representation of a scene like this had a significance, which we fail to appreciate. It strikes us as simply farcical and not very funny; to them it was a mirror reflecting a characteristic feature of the time and ridiculing a grave judicial abuse, as Cervantes, a century earlier, burlesqued the institution of chivalry in the adventures of Don Quixote. (See Appendix R.)

Lex talionis is the oldest kind of law and the most deeply rooted in human nature. To the primitive man and the savage, tit for tat is an ethical axiom, which it would be thought immoral as well as cowardly not to put into practice. No principle is held more firmly or acted upon more universally than that of literal and exact retributions in man’s dealings with his fellows – the iron rule of doing unto others the wrongs which others have done unto you. Hebrew legislation demanded “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” An old Anglo-Saxon law made this retaliatory principle of membrum pro membro the penalty of all crimes of personal violence, including rape; even a lascivious eye was to be plucked out, in accordance with the doctrine that “whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart.” [“Corruptor puniatur in eo in quo deliquat: oculos igitur amittat, propter aspectum decoris, quo virginem concupivit; amittat et testiculos, qui calorem stupri induxerunt.” Cf. Bracton, 147b; Reeves, I. 481.] This was believed to be God’s method of punishment, smiting with disease or miraculously destroying the bodily organs, which were the instruments of sin. Thus Stengelius (De Judiciis Divinis, II. 26, 27) records how a thunderbolt was hurled by the divine hand in such a manner as to castrate a lascivious priest: impurus et saltator sacerdos fulmine castratus. The same sort of retributive justice was recognized by the Institutes of Manu, which punished a thief by the amputation or mutilation of his fingers.

In the covenant with Noah it was declared that human blood should be required not only “at the hand of man,” but also “at the hand of every beast;” and it was subsequently enacted, in accordance with this fundamental principle, that “if an ox gore a man or a woman that they die, then the ox shall be surely stoned, and his flesh shall not be eaten.” To eat a creature which had become the peer of man in blood-guiltiness and in judicial punishment, would savour of anthropophagy. This decision of Jewish law-givers as to the use of the flesh of otherwise edible animals condemned to death for crime has nearly always been followed. Thus when, in 1553, several swine were executed for child-murder at Frankfort on the Main, their carcasses, although doubtless as good pork as could be found in the shambles, were thrown into the river. Usually, however, they were buried under the gallows or in whatever spot was set apart for interring the dead bodies of human criminals. At Ghent, however, in 1578, after judicial sentence of death had been pronounced on a cow, she was slaughtered and her flesh sold as butcher’s meat, half of the proceeds of the sale being given as compensation to the injured party and the other half to the city treasury for distribution among the poor; but her head was struck off and stuck on a stake near the gallows, to indicate that she had been capitally punished. The thrifty Flemings did not permit the moral depravity to taint the material substance of the bovine culprit and impair the excellence of the beef.

On the other hand, the Law Faculty of the University of Leipsic decided that a cow, which had pushed a woman and thereby caused her death at Machern in Saxony, July 20, 1621, should be taken to a secluded and barren place and there killed and buried “unflayed.” In this case the flesh of the homicidal animal was not to be eaten nor the hide converted into leather. (Vide Appendix S.)

In this connection it may be interesting to mention a decision of the Ecclesiastical Court (geistlicher Convent) of Berne, given in 1666 and recorded in Türler’s Strafrechtliche Gutachten des geistlichen Konvents der Stadt Bern (Zeitschrift für schweiz. Strafrecht, Bd. III., Heft 5. Quoted by Tobler). An insane man was tried for murder and the prosecutor seems to have urged that the lack of moral responsibility did not suffice to relieve the accused of legal responsibility and to free him from punishment, citing as pertinent to the case the Mosaic law, which inflicted the death penalty on an ox for the like offence. On this point the court replied: “In the first place, that specifically Jewish law is not binding upon other governments, and is not observed by them either as regards oxen or horses. Again, even if the Jewish law should be really applicable to all men, it could not be appealed to in the present case, since it is not permissible to draw an inference a bove ad hominem. Inasmuch as no law is given to the ox, it cannot violate any, in other words, cannot sin and therefore cannot be punished. On the other hand, death is a severe penalty for man. Nevertheless if God commanded that the ‘goring ox’ should be killed, this was done in order to excite aversion to the deed, to prevent the animal from injuring others, and in this manner to punish the owner of the beast. This fact, however, proves nothing touching the case now before us; for, although God enacted a law for the ox, he did not enact any for the insane man, and the distinction between the goring ox and the maniac must be observed. An ox is created for man’s sake, and can therefore be killed for his sake; and in doing this there is no question of right or wrong as regards the ox; on the other hand, it is not permissible to kill a man, unless he has deserved death as a punishment.” The remarkable points in this decision are, first, the abrogation of a biblical enactment by an ecclesiastical court of the seventeenth century, and, secondly, the discussion of a criminal act from a psychiatrical point of view and the admission of extenuating and exculpating circumstances derived from this source.

The Koran holds every beast and fowl accountable for injuries done to each other, but reserves their punishment for the life to come. Among the Kukis, if a man falls from a tree and is killed, it is the sacred duty of the next of kin to fell the tree, and cut it up and scatter the chips abroad. The spirit of the tree was supposed to have caused the mishap, and the blood of the slain was not thought to be thoroughly avenged until the offending object had been effaced from the earth. A survival of this notion was the custom of burning heretics and flinging their ashes to the four winds or casting them upon rivers running into the sea. The laws of Drakôn and Erechtheus required weapons and all other objects, by which a person had lost his life, to be publicly condemned and thrown beyond the Athenian boundaries. This sentence of banishment, then regarded as one of the severest that could be inflicted, was pronounced upon a sword, which had killed a priest, the wielder of the same being unknown; and also upon a bust of the elegiac poet Theognis, which had fallen on a man and caused his death. Even in cases which, one would think, might be regarded as justifiable homicide in self-defence, no such ground of exculpation seems to have been admitted. Thus the statue erected by the Athenians in honour of the famous athlete, Nikôn of Thasos, was assailed by his envious foes and pushed from its pedestal. In falling it crushed one of its assailants, and was therefore brought before the proper tribunal and sentenced to be cast into the sea. Judicial proceedings of this kind were called ἄψῦχων δίκαι (prosecutions of lifeless things) and were conducted before the Athenian law-court known as the Prytaneion; they are alluded to by Æschines, Pausanias, Demosthenes, and other writers, and briefly described in the Onomasticon of Julius Pollux and the Lexicon Decem Oratorum Graecorum of Valerius Harpokration.

Strictly speaking, the term ἄψῦχων should be applied only to an inanimate object and not to the brute, which was more correctly called ἄφωνον (dumb); but this distinction was not always observed either in common parlance or in legal phraseology. The law on this point as formulated and expounded by Plato (De Leg., IX. 12) was as follows: “If a draught animal or any other beast kill a person, unless it be in a combat authorized and instituted by the state, the kinsmen of the slain shall prosecute the said homicide for murder, and the overseers of the public lands (ἀγρονόμοι), as many as may be commissioned by the said kinsmen, shall adjudicate upon the case and send the offender beyond the boundaries of the country (ἐξορίζειν, exterminate in the literal and original sense of the term). If a lifeless thing shall deprive a person of life, provided it may not be a thunderbolt (κεραυνός) or other missile (βέλος) hurled by a god, but an object which the said person may have run against or by which he may have been struck and slain, then the kinsman immediate to the deceased shall appoint the nearest neighbour as judge in order to purify himself as well as his next of kin from blood-guiltiness, but the culprit (τὸ ὄφλον) shall be put beyond the boundaries, in the same manner as if it were an animal.” In the same section it is enacted that if a person be found dead and the murderer be unknown, then proclamation shall be made by a herald on the market-place forbidding the murderer to enter any sanctuary or the land of the slain, and declaring that, if discovered, he shall be put to death and his body be thrown unburied beyond the boundaries of the country of the person killed. The object of these measures was to appease the Erinnys or avenging spirit of the deceased, and to avert the calamities which would otherwise be brought upon the land, in accordance with the strict law of retribution demanding blood for blood, no matter whether it may have been shed wilfully or accidentally. [Cf. Æschylus, Cho., 395, where this law (νόμος) is clearly and strongly affirmed.] The same superstitious feeling leads the hunters of many savage tribes to beg pardon of bears and other wild animals for killing them and to purify themselves by religious rites from the taint incurred by such an act, the μίασμα of murder, as the Greeks called it.

Quite recently in China fifteen wooden idols were tried and condemned to decapitation for having caused the death of a man of high military rank. On complaint of the family of the deceased the viceroy residing at Fouchow ordered the culprits to be taken out of the temple and brought before the criminal court of that city, which after due process of law sentenced them to have their heads severed from their bodies and then to be thrown into a pond. The execution is reported to have taken place in the presence of a large concourse of approving spectators and “amid the loud execrations of the masses,” who seem in their excitement to have “lost their heads” as well as the hapless deities.

When the Russian prince Dimitri, the son of Ivan II., was assassinated on May 15, 1591, at Uglich, his place of exile, the great bell of that town rang the signal of insurrection. For this serious political offence the bell was sentenced to perpetual banishment in Siberia, and conveyed with other exiles to Tobolsk. After a long period of solitary confinement it was partially purged of its iniquity by conjuration and re-consecration and suspended in the tower of a church in the Siberian capital; but not until 1892 was it fully pardoned and restored to its original place in Uglich. A like sentence was imposed by a Russian tribunal on a butting ram in the latter half of the seventeenth century.

Mathias Abele von Lilienberg, in his Metamorphosis Telae Judiciariae, of which the eighth edition was published at Nuremberg in 1712, states that a drummer’s dog in an Austrian garrison town bit a member of the municipal council in the right leg. The drummer was sued for damages, but refused to be responsible for the snappish cur and delivered it over to the arm of justice. Thereupon he was released, and the dog sentenced to one year’s incarceration in the Narrenkötterlein, a sort of pillory or iron cage standing on the market-place, in which blasphemers, evil-livers, rowdies and other peace-breakers were commonly confined. [The Narrenkötterlein, Narrenköderl or Kotter formerly on the chief public squares in Vienna are described as “Menschenkäfige mit Gittern von Eisen und Holz, bestimmt das darin versperrte Individuum dem Spotte des Pöbels preiszugeben (zu narren).” Schläger: Wiener Skizzen aus dem Mittelalter, II. 245.] Mornacius also relates that several mad dogs, which attacked and tore in pieces a Franciscan novice in 1610, were “by sentence and decree of the court put to death.” It is surely reasonable enough that mad dogs should be killed; the remarkable feature of the case is that they should be formally tried and convicted as murderers by a legal tribunal, and that no account should have been taken of their rabies as an extenuating circumstance or ground of acquittal. In such a case the plea of insanity would certainly seem to be naturally suggested and perfectly valid.

On the other hand, it is expressly declared in the Avesta that a mad dog shall not be permitted to plead insanity in exculpation of itself, but shall be “punished with the punishment of a conscious and premeditated offence” (baodho-varsta), i. e. by progressive mutilation, corresponding to the number of persons or beasts it has bitten, beginning with the loss of its ears, extending to the crippling of its feet and ending with the amputation of its tail. This cruel and absurd enactment is wholly inconsistent with the kindly spirit shown in the Avesta towards all animals recognized as the creatures of Ahuramazda, and especially with the many measures taken by the Indo-Aryans as a pastoral people for the protection of the dog. Indeed, a paragraph immediately following in the same chapter commands the Mazdayasnians to treat such a rabid dog humanely, and to “wait upon him with medicaments and to try to heal him, just as they would care for a righteous man.” On this important point Avestan legislation is so inconsistent and self-contradictory that one may justly suspect the harsh enactments to be later interpolations.

A curious example of imputed crime and its penal consequences is seen in the Roman custom of celebrating the anniversary of the preservation of the Capitol from the night-attack of the Gauls, not only by paying honour to the descendants of the sacred geese, whose cries gave warning of the enemy’s approach, adorning them with jewels and carrying them about in litters, but also by crucifying a dog, as a punishment for the want of vigilance shown by its progenitors on that occasion. This imputation of merit and demerit was really no more absurd than to visit the sins of the fathers on the children, as prescribed by Jewish and other ancient lawgivers, or to decree corruption of blood in persons attainted of treason, as is still the practice of modern states, or any other theory of inherited guilt or scheme of vicarious atonement, that sets the sin of the federal head of the race to the account of his remotest posterity and relieves them from its penalties only through the suffering and death of a wholly innocent person. They are all applications of the barbarous principle, which, in primitive society, with its gross conceptions of justice, made the entire tribe responsible for the conduct of each of its members. The vendetta, which continues to be the unwritten but inviolable code of many semi-civilized communities, is based upon the same conception of consanguineous solidarity for the perpetration and avenging of crime.

According to an old Anglo-Saxon law, abolished by King Canute, in case stolen property was found in the house of a thief, his wife and family, even to the infant in the cradle, though it had never taken food (peâh hit nafre metes ne âbîte), were punished as partakers of his guilt. The Schwabenspiegel, the oldest digest of South German law, treated as accessaries all the domestic animals found in a house, in which a crime of violence had been committed, and punished them with death. [“Man soll allez daz tötden daz in den huze ist gevonden: leuten und vie, ros und rinder, hunde und katzen, ganzen und hundre.” § 290.]

Cicero approved of such penalties for political crimes as “severe but wise enactments, since the father is thereby bound to the interests of the state by the strongest of ties, namely, love for his children.” Roman law under the empire punished treason with death and then added: “As to the sons of traitors, they ought to suffer the same penalty as their parents, since it is highly probable that they will sometime be guilty of the same crime themselves; nevertheless, as a special act of clemency, we grant them their lives, but, at the same time, declare them to be incapable of inheriting anything from father or mother or of receiving any gift or bequest in consequence of any devise or testament of kinsmen or friends. Branded with hereditary infamy and excluded from all hope of honour or of property, may they suffer the torture of disgrace and poverty until they shall look upon life as a curse and long for death as a kind release.” This atrocious edict of the emperors Arcadius and Honorius has its counterpart in the still more radical code of Pachacutez, the Justinian of the ancient Peruvians, which punished adultery with the wife of an Inca by putting to death not only the adulteress and her seducer, but also the children, slaves and kindred of the culprits, as well as all the inhabitants of the city in which the crime was committed, while the city itself was to be razed and the site covered with stones.

The principle enunciated by Cicero has also been accepted by modern legislators as applicable to high treason. Thus, when Tschech, the burgomaster of Storkow, attempted to take the life of Frederic William of Prussia, July 26, 1844, he was tried and executed Dec. 14 of the same year. On the day after his execution his only daughter, Elizabeth, was arrested, and to her inquiry by what right she had been deprived of her freedom, the authorities replied that, “according to Prussian law the children of a person convicted of high treason and all the members of his family, especially if they seemed to be dangerous and to share the opinions of their father, can be imprisoned for life or banished from the country.” The young lady was then exiled to Westphalia, and there placed in the custody of an extremely austere parson, until she finally escaped to France, and afterwards to Switzerland, where she spent the rest of her days.

When the prefects Tatian and Proculus fell into disgrace, Lycia, their native land, was deprived of the autonomy it had hitherto enjoyed as a Roman province, and its inhabitants were disfranchised and declared incapable of holding any office under the empire. So, too, when Joshua discovered some of the spoils of Jericho hidden in the tent of Achan, not only the thief himself, but also “his sons, and his daughters, and his oxen, and his asses, and his sheep, and his tent, and all that he had,” were brought into the valley of Achor, and there stoned with stones and burned with fire. About this time, however, such holocausts of justice were suppressed among the Jews, and a law enacted that henceforth “the fathers shall not be put to death, for the children, neither shall the children be put to death for the fathers, every man shall be put to death for his own sin;” or, as Jeremiah expresses it figuratively, the children’s teeth were to be no longer set on edge by the sour grapes which their fathers had eaten. Yet the persistency of time-honoured custom and its power of overriding new statutes are seen in the fact that, several centuries later, at the request of the Gibeonites, whom it had become desirable to conciliate, David did not scruple to deliver up to them seven of Saul’s sons to be hanged for the evil which their father had wrought in slaying these foes of Israel. It would have been a parallel case if Bismarck had sought to win the friendship and favour of the French by giving into their hands the descendants of Blücher to be guillotined on the Place de la Concorde, or, after having made a political pilgrimage to Canossa, should surrender the children of Dr. Falk to be racked and burned at the stake by the ultramontanes.

According to the current orthodox theology, treason against God, committed by our common progenitor, worked “corruption of blood” in the whole human race, all the children of men being attainted with guilt in consequence of the act of their first parent. This crude and brutal conception of justice is the survival of a primitive and barbarous state of society, and it is curious to observe how the most highly civilized peoples, who have outgrown this notion and set it aside in the secular relations of man to man, still cling to it as something sacred and sublime in the spiritual relations of man to the deity. Only the all-wise and all-powerful sovereign of the universe is supposed to continue to administer law and justice on principles which common-sense and the enlightened opinion of mankind have long since abrogated and banished from earthly legislation. Thus the divine government, instead of keeping pace with the progress of human institutions, still corresponds to the ideals of right and retribution entertained by savage tribes and the lowest types of mankind.

The horrible mutilations to which criminals were formerly subjected, originated in an endeavour to administer strictly even-handed justice. What could be fairer or more fit than to punish perjury by cutting off the two fingers which the perjurer had held up in taking the violated oath? It was a popular belief that the fingers of an undetected perjurer would grow out of the grave after death, seeking retributive amputation, as a plant seeks the light, and that his ghost would never rest until this penalty had been inflicted. (See Heinrich Roch: Schles. Chron., p. 267, where a case of this kind is recorded.) The Carolina (constitutio criminalis Carolina), although in many respects an advance on mediæval penal legislation, doomed incendiaries to be burned alive; and an old law, cited by Döpler (Theat. Poen., II. 271), condemned a man who had dug up and removed a boundary stone to be buried in the earth up to his neck and to have his head plowed off with a new plow, thus symbolizing in his own person the grave offence which he had committed. Ivan Basilovitch, a Muscovite prince, ordered that an ambassador, who did not uncover in his presence, should have his hat nailed to his head; and it is a feeble survival of the same idea of proper punishment that makes the American farmer nail the dead hawk to his barn-door, just as in former times it was customary to crucify highway robbers at cross-roads.