The Criminal Prosecution and Capital Punishment of Animals

According to an old Roman law ascribed to Numa Pompilius, the oxen which plowed up a boundary stone, as well as their driver, were sacrificed to Jupiter Terminus. In the early development of agriculture, and the transition from communal to personal property in land, this severe enactment was deemed necessary to the protection of the “sacra saxa,” by which the boundary lines of the fields were defined. Only by making the violation of enclosed ground a sacrilege was it possible to prevent encroachments upon it, so strong was the lingering prejudice against individual possessions of this kind running in the blood of a people descended from nomadic tribes of herdsmen, who regarded sedentary communities engaged in tilling the soil as their direst foes. The lawgiver knew very well that the oxen were involuntary agents, and that the plowman alone was culpable; but when a religious atonement is to be made and an angry god appeased, moral distinctions determining degrees of responsibility are uniformly ignored, and the innocent are doomed to suffer with the guilty. The oxen were tainted by the performance of an act, in which the exercise of their will was not involved, and must therefore be consigned to the offended deity. The same is true of the plowman, who did not escape immolation even when the motio termini or displacement of the boundary stone occurred unintentionally.

That the feeling, which found expression in such enactments and usages and survives in schemes of expiation and vicarious sacrifice, lies scarcely skin-deep under the polished surface of our civilization, is evident from the force and suddenness with which it breaks out under strong excitement, as when Cincinnati rioters burn the court-house because they suspect the judges of venality and are dissatisfied with the verdicts of the juries. The primitive man and the savage, like the low and ignorant masses of civilized communities, do not take into consideration whether the objects from which they suffer injury are intelligent agents or not, but wreak their vengeance on stocks and stones and brutes, obeying only the rude instinct of revenge. The power of restraining these aboriginal propensities, and of nicely analyzing actions and studying mental conditions in order to ascertain degrees of moral responsibility, presupposes a high degree of mental development and refinement and great acuteness of psychological perception, and is, in fact, only a recent acquisition of a small minority of the human race. The vast bulk of mankind will have to pass through a long process of intellectual evolution, and rise far above their present place in the ascending scale of culture before they attain it.

For this reason Lombroso would abolish trial by jury, which seems to him not a sign of progress towards better judicatory methods, but a clumsy survival of primitive justice as administered by barbarous tribes and even gregarious animals. It makes the administration of justice dependent upon popular prejudice and passion, and finds its most violent expression or explosion in lynch law, which is only trial by a jury of the whole community gone mad. It would certainly be a dismal farce to apply to the criminal classes the principle that every man must be judged by his peers. In the cantonal courts of Switzerland the verdict of the jury is uniformly in favour of the native against the foreigner, no matter what the merits of the case may be; and this outrageous perversion of right and equity is called patriotism, a term which conveniently sums up and euphemizes the general sentiment of Helvetian innkeepers and tradesmen that “the stranger within their gates” is their legitimate spoil, and has no other raison d’être. In Italy, especially in Naples and Sicily, a thief may be sometimes condemned, but a murderer is almost invariably acquitted by the jury, whose decision expresses the corrupted moral sense of a people accustomed to admire the bandit as a hero and to consider brigandage a highly honourable profession.

The childish disposition to punish irrational creatures and inanimate objects, which is common to the infancy of individuals and of races, has left a distinct trace of itself in that peculiar institution of English law known as deodand, and derived partly from Jewish and partly from old German usages and traditions. “If a horse,” says Blackstone, “or any other animal, of its own motion kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodand.” If a man, in driving a cart, tumble to the ground and lose his life by the wheel passing over him, if a tree fall on a man and cause his death, or if a horse kick his keeper and kill him, then the wheel, the tree and the horse are deodands pro rege, and are to be sold for the benefit of the poor.

Omnia quae movent ad mortem sunt Deo danda is the principle laid down by Bracton. If therefore a cart-wheel run over a man and kill him, not only is the wheel, but also the whole cart to be declared deodand, because the momentum of the cart in motion contributed to the man’s death; but if the shaft fall upon a man and kill him, then only the shaft is deodand, since the cart did not participate in the crime. It is also stated, curiously enough, that if an infant fall from a cart not in motion and be killed, neither the horse nor the cart shall be declared deodand; not so, however, if an adult come to his death in this manner. The ground of this distinction is not quite clear; although it may arise from the assumption that the child had no business there, or that such an accident could not have happened to an adult, unless there was something irregular and perverse in the conduct of the animal or the vehicle. In the archives of Maryland, edited by Dr. William Hand Browne and Miss Harrison in 1887, mention is made of an inquest held January 31, 1637, on the body of a planter, who “by the fall of a tree had his bloud bulke broken.” “And furthermore the Jurors aforesaid upon their oath aforesaid say that the said tree moved to the death of the said John Bryant; and therefore find the said tree forfeited to the Lord Proprietor.”

According to an old Anglo-Saxon law a sword or other object by which a man had been slain, was not regarded as pure (gesund) until the crime had been expiated, and therefore could not be used, but must be set apart as a sacrifice. A sword-cutler would not take such a weapon to polish or repair without a certificate that it was gesund or free from homicidal taint, so as not to render himself liable for any harm it might inflict, since it was supposed to exert a certain magical and malicious influence. Also an ancient municipal law of the city of Schleswig stipulated that the builder of a house should be held responsible in case any one should be killed by a beam, block, rafter or other piece of timber, and pay a fine of nine marks, or give the object that had committed the manslaughter to the family or kinsmen of the slain. If he failed to do so and built the contaminated timber into the edifice, then the owner had to atone for the homicide with the whole house. (Cf. Heinrich Brunner: Deutsche Rechtsgeschichte, II. p. 557, Anm. 31.) A modern survival of this legal principle is the notion, current especially among criminals, that any part of the body of a deceased person, or better still of an executed murderer, exerts a magical and protective power or brings good luck. It is by no means uncommon among the peasants and lower classes of Europe to put the finger of a dead thief under the threshold in order to protect the house homœpathically against theft. The persistency of this superstition is shown by the fact that a farmer’s hired man named Sier and belonging to the hamlet of Heumaden, was tried at Weiden in Bavaria, May 23, 1894, and convicted of having exhumed the body of a newly buried child in the churchyard of Moosbach and taken out one of its eyes, which he supposed would render him invisible to mortal sight like the famous tarnkappe of old German mythology, and thus enable him to indulge with impunity his propensity to steal. For this sacrilege he was sentenced to one year and two months’ imprisonment and to the loss of civil rights for three years.

In some of the Scottish islands it is the custom to beach a boat, from which a fisherman had been drowned, cursing it for its misdeed and letting it dry and fall to pieces in the sun. The boat is guilty of manslaughter and must no longer be permitted to sail the sea with innocent craft. Scotch law does not seem to have recognized deodand in the strictly etymological sense of the term, but only escheat, in other words, the confiscated objects were not necessarily applied to pious purposes —pro anima regis et omnium fidelium defunctorum– but were simply forfeited to the king or to the state. This form of confiscation never prevailed so generally in Central and Eastern, as in Western Europe. Some German communities and territorial sovereigns introduced it from France, but so modified the practical application of the principle as to award to the injured party the greater portion, in Lüneburg, for example, two-thirds of the value of the confiscated animal or object. (Vide Kraut’s Stadtrecht von Lüneburg, No. XCVII. Cited by Von Amira, p. 594.)

Blackstone’s theories of the origin of deodands are exceedingly vague and unsatisfactory. Evidently the learned author of the Commentaries could give no consistent explanation of these vestiges of ancient criminal legislation. His statement that they were intended to punish the owner of the forfeited property for his negligence, and his further assertion that they were “designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death,” are equally incorrect. In most cases the owner was perfectly innocent and very frequently was himself the victim of the accident. He suffered only incidentally from a penalty imposed for a wholly different purpose, just as a slaveholder incurs loss when his human chattel commits murder and is hanged for it. The primal object was to atone for the taking of life in accordance with certain crude conceptions of retribution. Under hierarchical governments the prominent idea was to appease the wrath of God, who otherwise might visit mankind with famine and pestilence and divers retaliatory scourges. For the same reason the property of a suicide was deodand. Thus the wife and children of the deceased, who may be supposed to have already suffered most from the fatal act, were subjected to additional punishment for it by being robbed of their rightful inheritance. Yet this was by no means the intention of the lawmakers, who simply wished to prescribe an adequate atonement for a grievous offence, and in seeking to accomplish this main purpose, ignored the effect of their action upon the fortunes of the heirs or deemed it a matter of minor consideration.

Ancient legislators uniformly regarded a felo de se as a criminal against society and treated him as a kind of traitor. The man had enjoyed the support and protection of the body-politic during his infancy and youth, and, by taking his own life, he shook off the responsibilities and shirked the duties devolving upon him as an adult member of the commonwealth. This is why self-murder was called felony and as such involved forfeiture of goods. Calchas would not permit the body of “the mad Ajax,” who died by his own hand, to be burned; and the Christian Church of to-day refuses to bury in consecrated ground with religious rites any person who deliberately cuts short the thread of his existence and thus commits treason against the Most High. The Athenians ignominiously lopped off the hand of a suicide and buried the guilty instrument of his death, as an accursed thing, apart from the rest of the interred or incremated body. In some communities all persons over sixty years of age have been left free to kill themselves, if they wished to do so. They had performed the duties of citizenship and of procreation and were permitted to retire in this way, if they saw fit. In very ancient times, the magistrates of Massalia (Marseilles, then a Greek colony) are said to have kept on hand a supply of poison to be given to any citizen, who, on due examination, was found to have good and sufficient reason for taking his own life. Suicide was thus legalized and facilitated, and thereby rendered honourable, and was perhaps found more convenient and economical than to grant pensions or to support paupers. It was a summary method of getting rid of those who had finished the struggle for existence or failed in it, and in either case might be a burden to themselves or to the state. On the other hand, when a suicidal mania seized upon the maidens of Miletos, an Ionian city in Caria, and threatened to produce a dearth of wives and mothers, the municipal authorities decreed that the bodies of all such persons should be exposed naked in the market-place, in order that virgin modesty and shame might overcome the desire of death, and check a self-destructive passion extremely detrimental to the Milesian commonwealth.

It is true, as Blackstone asserts, that the Church claimed deodands as her due and put the price of them into her own coffers; but this fact does not explain their origin. They were an expression of the same feeling that led the public authorities to fill up a well, in which a person had been drowned, not as a precautionary measure, but as a solemn act of expiation; or that condemned and confiscated a ship, which, by lurching, had thrown a man overboard and caused his death.

Deodands were not abolished in England until the reign of Queen Victoria. With the exception of some vestiges of primitive legislation still lingering in maritime law, they are, in modern codes, one of the latest applications of a penal principle, which, in Athens, expatriated stocks and stones, and in other countries of Europe excommunicated bugs and sent beasts to the stake and to the gallows.

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 homœopenal principle of similia similibus puniantur, for the most part blindly and brutally applied.