The Criminal Prosecution and Capital Punishment of Animals

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were devouring the fruits of the earth, have been excommunicated and, in obedience to the commands of the Church, have withdrawn from the cultivated fields to the places prescribed by the bishop who had been appointed to adjudge and to adjure them.”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.