The Criminal Prosecution and Capital Punishment of Animals

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.)