We may add that the west wall of the southbranch of the transept in the Church of the Holy Trinity (Sainte-Trinité) at Falaise in Normandy was formerly adorned with a fresco-painting of this execution, which is mentioned inStatistique de Falaise(1827, t. I. 83), and more fully described by l’Abbé Pierre-Gilles Langevin, in hisRecherches Historiques sur Falaise(1814, p. 146). In a Supplement (p. 12) to this work, published several years later, the Abbé states that, about the year 1820, the entire church, including the fresco, was whitewashed, so that the picture has since then been invisible, and, so far as can be ascertained, no engraving or other copy of it has ever been made. Unfortunately, too, as the same writer informs us,la châsse de la bannière(banner-holder) was fastened to the wall of the church on this very spot, thus covering and permanently destroying at least a portion of the painting.
In 1394, a pig was found guilty of “having killed and murdered a child in the parish of Roumaygne, in the county of Mortaing, for which deed the said pig was condemned to be haled and hanged by Jehan Petit, lieutenant of the bailiff.” The work was really done by the hangman (pendart), Jehan Micton, who received for his services the sum of “fifty souls tournois.” (VideAppendix H.) In another case the deputy bailiff of Mantes and Meullant presented a bill, dated March 15, 1403, which contained the following items of expense incurred for theincarceration and execution of an infanticide sow:
“Cost of keeping her in jail, six sols parisis.“Item, to the master of high works, who came from Paris to Meullant to perform the said execution by comand and authority of the said bailiff, our master, and of the procurator of the king, fifty-four sols parisis.“Item, for a carriage to take her to justice, six sols parisis.“Item, for cords to bind and hale her, two sols eight deniers parisis.“Item, for gloves, two deniers parisis.”
“Cost of keeping her in jail, six sols parisis.
“Item, to the master of high works, who came from Paris to Meullant to perform the said execution by comand and authority of the said bailiff, our master, and of the procurator of the king, fifty-four sols parisis.
“Item, for a carriage to take her to justice, six sols parisis.
“Item, for cords to bind and hale her, two sols eight deniers parisis.
“Item, for gloves, two deniers parisis.”
This account, which amounted in all to sixty-nine sols eight deniers parisis, was examined and approved by the auditor of the court, De Baudemont, who affixed to it his own seal with signature and paraph and “in further confirmation and approbation thereof caused it to be sealed with the seal of the Chatellany of Meullant, on the 15th day of March in the year 1403.” (SeeAppendix I.) In the following year a pig was executed at Rouvres for the same offence.
Brutes and human criminals were confined in the same prison and subjected to the same treatment. Thus “Toustain Pincheon, keeper of the prisons of our lord the king in the town of Pont de Larche,” acknowledges the receipt, “through the hand of the honourable and wise man, Jehan Monnet, sheriff (vicomte) of the saidtown, of nineteen sous six deniers tournois for having found the king’s bread for the prisoners detained, by reason of crime, in the said prison.” The jailer gives the names of the persons in custody, and concludes the list with “Item, one pig, conducted into the said prison and kept there from the 24th of June, 1408, inclusive, till the 17th of the following July,” when it was hanged “for the crime of having murdered and killed a little child” (pource que icellui porc avoit muldry et tue ung pettit enfant). For the pig’s board the jailer charged two deniers tournois a day, the same as for boarding a man, thus placing the porker, even in respect to its maintenance, on a footing of perfect equality with the human prisoners. He also puts into the account “ten deniers tournois for a rope, found and furnished for the purpose of tying the said pig that it might not escape.” The correctness of the charges is certified to by “Jean Gaulvant, sworn tabellion of our lord the king in the viscounty of Pont de Larche.” (VideAppendix J.) Again in 1474, the official of the Bishop of Lausanne sentenced a pig to be hanged “until death ensueth,” for having devoured an infant in its cradle in the vicinity of Oron, and to remain suspended from the gallows for a certain length of time as a warning to wrong-doers. It is also expressly stated that, in 1585, the body of a pig, which had been executed for the murder of a child atSaint-Omer, at the hostelry of Mortier d’Or, was left hanging “for a long space” on a gibbet in a field near the highway. (Derheims:Histoire de Saint-Omer, p. 327.) A little later a similar spectacle met the eyes of Guy Pape, as he was going to Châlons-sur-Marne in Champagne, to pay homage to King Henry IV. In his own words:dum ibam ad civitatem Cathalani in Campania ad Regem tunc ibi existentem, vidi quemdam porcum, in furcis suspensum, qui dicebatur occidisse quemdam puerum. (Quaestio CCXXXVIII:De poena bruti delinquentis. Lugduni, MDCX.)
On the 5th of September, 1379, as two herds of swine, one belonging to the commune and the other to the priory of Saint-Marcel-le-Jeussey, were feeding together near that town, three sows of the communal herd, excited and enraged by the squealing of one of the porklings, rushed upon Perrinot Muet, the son of the swinekeeper, and before his father could come to his rescue, threw him to the ground and so severely injured him that he died soon afterwards. The three sows, after due process of law, were condemned to death; and as both the herds had hastened to the scene of the murder and by their cries and aggressive actions showed that they approved of the assault, and were ready and even eager to becomeparticipes criminis, they were arrested as accomplices and sentenced by the court to suffer the same penalty. But the prior,Friar Humbert de Poutiers, not willing to endure the loss of his swine, sent an humble petition to Philip the Bold, then Duke of Burgundy, praying that both the herds, with the exception of the three sows actually guilty of the murder, might receive a full and free pardon. The duke lent a gracious ear to this supplication and ordered that the punishment should be remitted and the swine released. (VideAppendix K.)
A peculiar custom is referred to in theprocès verbalof the prosecution of a porker for infanticide, dated May 20, 1572. The murder was committed within the jurisdiction of the monastery of Moyen-Montier, where the case was tried and the accused sentenced to be “hanged and strangled on a gibbet.” The prisoner was then bound with a cord and conducted to a cross near the cemetery, where it was formally given over to an executioner from Nancy. “From time immemorial,” we are told, “the justiciary of the Lord Abbot of Moyen-Montier has been accustomed to consign to the provost of Saint-Diez, near this cross, condemned criminals, wholly naked, that they may be executed; but inasmuch as this pig is a brute beast, he has delivered the same bound with a cord, without prejudicing or in any wise impairing the right of the Lord Abbot to deliver condemned criminals wholly naked.” The pig must not wear a rope unless the right to do without it beexpressly reserved, lest some human culprit, under similar circumstances, should claim to be entitled to raiment.
“’Twill be recorded for a precedent;And many an error, by the same exampleWill rush into the state: it cannot be.”
In the case of a mule condemned to be burned alive together with a man guilty of buggery, at Montpellier, in 1565, as the quadruped was vicious and inclined to kick (vitiosus et calcitrosus), the executioner cut off its feet before consigning it to the flames. This mutilation was an arbitrary and extra-judicial act, dictated solely by considerations of personal convenience. Hangmen often indulged in capricious and supererogatory cruelty in the exercise of their patibulary functions, and mediæval as well as later writers on criminal jurisprudence repeatedly complain of this evil and call for reform. Thus Damhouder, in hisRerum Criminalium Praxis(cap. de carnifice, p. 234), urges magistrates to be more careful in selecting persons for this important office, and not to choose evil-doers, “assiduous gamblers, public whoremongers, malicious back-biters, impious blasphemers, assassins, thieves, murderers, robbers, and other violators of the law as vindicators of justice.” Indeed, these hardened wretches sometimes took the law into their own hands. For example, on the 9th of June, 1576, at Schweinfurt in Franconia, a sow, which had bitten off the ear andtorn the hand of a carpenter’s child, was given into custody, whereupon the hangman, without legal authority, took it to the gallows-green (Schindrasen) and there “hanged it publicly to the disgrace and detriment of the city.” For this impudent usurpation of judiciary powers Jack Ketch was forced to flee and never dared return. Hence arose the proverbial phrase Schweinfurter Sauhenker (Schweinfurt sow-hangman), used to characterize a low and lawless ruffian and vile fellow of the baser sort. It was not the mere killing of the sow, but the execution without a judicial decision, the insult and contempt of the magistracy and the judicatory by arrogating their functions, that excited the public wrath and official indignation.
Buggery (offensa cujus nominatio crimen est, as it is euphemistically designated in legal documents) was uniformly punished by putting to death both parties implicated, and usually by burning them alive. The beast, too, is punished and both are burned (punitur etiam pecus et ambo comburuntur), says Guillielmus Benedictinus, a writer on law, who lived about the end of the fourteenth century. Thus, in 1546, a man and a cow were hanged and then burned by order of the parliament of Paris, the supreme court of France. In 1466, the same tribunal condemned a man and a sow to be burned at Corbeil. Occasionally interment was substituted for incremation. Thus in 1609, at Niederrad,a man and a mare were executed and their bodies buried in the same carrion-pit. On the 12th of September, 1606, the mayor of Loens de Chartres, on complaint of the dean, canons, and chapter of the cathedral of Chartres, condemned a man named Guillaume Guyart to be “hanged and strangled on a gibbet in reparation and punishment of sodomy, whereof the said Guyart is declared accused, attainted and convicted.” A bitch, his accomplice, was sentenced to be knocked on the head (assommée) by the executioner of high justice and “the dead bodies of both to be burned and reduced to ashes.” It is furthermore added that if the said Guyart, who seems to have contumaciously given leg-bail, cannot be seized and apprehended in person, the sentence shall, in his case, be executed in effigy by attaching his likeness in painting to the gibbet. It was also decreed that all the property of the absconder should be confiscated and the sum of one hundred and fifty livres be adjudged to the plaintiffs, out of which the costs of the trial were to be defrayed. (VideAppendix L.) This disgusting crime appears to have been very common; at least Ayrault in hisOrdre Judiciaire, published in 1606, states that he has many times (multoties) seen brute beasts put to death for this cause. In hisMagnalia Christi Americana(Book VI, (III), London, 1702) Cotton Mather records that “on June 6, 1662, at New Haven, there was a mostunparalleled wretch, one Potter by name, about sixty years of age, executed for damnable Bestialities.” He had been a member of the Church for twenty years and was noted for his piety, “devout in worship, gifted in prayer, forward in edifying discourse among the religious, and zealous in reforming the sins of other people.” Yet this monster, who is described as possessed by an unclean devil, “lived in most infandous Buggeries for no less than fifty years together, and now at the gallows there were killed before his eyes a cow, two heifers, three sheep and two sows, with all of which he had committed his brutalities. His wife had seen him confounding himself with a bitch ten years before; and he then excused himself as well as he could, but conjured her to keep it secret.” He afterwards hanged the bitch, probably as a sort of vicarious atonement. According to this account he must have begun to practice sodomy when he was ten years of age, a vicious precocity which the author would doubtless explain on the theory of diabolical possession. In 1681, a habitual sodomite, who had been wont to defile himself with greyhounds, cows, swine, sheep and all manner of beasts, was brought to trial together with a mare, at Wünschelburg in Silesia, where both were burned alive. In 1684, on the 3rd of May, a bugger was beheaded at Ottendorf, and the mare, his partner in crime, knocked on the head; it was expressly enjoinedthat in burning the bodies the man’s should lie underneath that of the beast. In the following year, fourteen days before Christmas, a journeyman tailor, “who had committed the unnatural deed of carnal lewdness with a mare,” was burned at Striga together with the mare.
For the same offence Benjamin Deschauffour was condemned, May 25, 1726, to be tied to a stake and there burned alive “together with the minutes of the trial;” his ashes were strewed to the wind and his estates seized and, after the deduction of a fine of three thousand livres, confiscated to the benefit of his Majesty. In the case of Jacques Ferron, who was taken in the act of coition with a she-ass at Vanvres in 1750, and after due process of law, sentenced to death, the animal was acquitted on the ground that she was the victim of violence and had not participated in her master’s crime of her own free-will. The prior of the convent, who also performed the duties of parish priest, and the principal inhabitants of the commune of Vanvres signed a certificate stating that they had known the said she-ass for four years, and that she had always shown herself to be virtuous and well-behaved both at home and abroad and had never given occasion of scandal to any one, and that therefore “they were willing to bear witness that she is in word and deed and in all her habits of life a most honest creature.” This document, given at Vanvres on Sept. 19, 1750, and signed by“Pintuel Prieur Curé” and the other attestors, was produced during the trial and exerted a decisive influence upon the judgment of the court. As a piece of exculpatory evidence it may be regarded as unique in the annals of criminal prosecutions.
The Carolina or criminal code of the emperor Charles V., promulgated at the diet of Ratisbon in 1532, ordained that sodomy in all its forms and degrees should be punished with death by fire “according to common custom” (“so einMensch mit einem Viehe, Mann mit Mann, Weib mit Weib, Unkeuschheit treibet, die haben auch das Leben verwircket, und man soll sie der gemeinen Gewohnheit nach mit dem Feuer vom Leben zum Tode richten.” Art. 116.), but stipulated that, if for any reason the punishment of the sodomite should be mitigated, the same measure of mercy should be shown to the beast. This principle is reaffirmed by Benedict Carpzov in hisPratica Nova Rerum Criminalium(Wittenberg, 1635), in which he states that “if for any cause the sodomite shall be punished only with the sword, then the beast participant of his crime shall not be burned, but shall be struck dead and buried by the knacker or field-master (Caviller oder Feldmeister).” The bugger was also bound to compensate the owner for the loss of the animal, or, if he left no property, the value must be paid out of the public treasury. “If the criminal act was not fully consummated,then the human offender was publicly scourged and banished, and the animal, instead of being killed, was put away out of sight in order that no one might be scandalized thereby” [Jacobi Döpleri,Theatrum Poenarum Suppliciorum et Executionum Criminalium, oder Schau-Platz derer Leibes- und Lebens-Straffen, etc. Sondershausen, 1693, II. p. 151.]
All Christian legislation on this subject is simply an application and amplification of the Mosaic law as recorded in Exodus xxii. 19 and Leviticus xx. 13-16, just as the cruel persecutions and prosecutions for witchcraft in mediæval and modern times derive their authority and justification from the succinct and peremptory command: “Thou shalt not suffer a witch to live.” In the older criminal codes two kinds or degrees of sodomy are mentioned,graviusandgravissimum; the former being condemned in the thirteenth verse and the latter in the fifteenth and sixteenth verses of Leviticus. Döpler tells some strange stories of the results of thepeccatum gravissimum; and the fact that a sober writer on jurisprudence could believe and seriously narrate such absurdities, furnishes a curious contribution to the history of human credulity.
It is rather odd that Christian law-givers should have adopted a Jewish code against sexual intercourse with beasts and then enlarged it so as to include the Jews themselves. Thequestion was gravely discussed by jurists, whether cohabitation of a Christian with a Jewess orvice versaconstitutes sodomy. Damhouder (Prax. Rer. Crim.c., 96, n. 48) is of the opinion that it does, and Nicolaus Boër (Decis., 136, n. 5) cites the case of a certain Johannes Alardus or Jean Alard, who kept a Jewess in his house in Paris and had several children by her; he was convicted of sodomy on account of this relation and burned, together with his paramour, “since coition with a Jewess is precisely the same as if a man should copulate with a dog” (Döpl.,Theat., II. p. 157). Damhouder, in the work just cited, includes Turks and Saracens in the same category, “inasmuch as such persons in the eye of the law and our holy faith differ in no wise from beasts.”
But to resume the subject of the perpetration of felonious homicide by animals, on the 10th of January, 1457, a sow was convicted of “murder flagrantly committed on the person of Jehan Martin, aged five years, the son of Jehan Martin of Savigny,” and sentenced to be “hanged by the hind feet to a gallows-tree (a ung arbre esproné).” Her six sucklings, being found stained with blood, were included in the indictment as accomplices; but “in lack of any positive proof that they had assisted in mangling the deceased, they were restored to their owner, on condition that he should give bail for their appearance, should further evidence beforthcoming to prove their complicity in their mother’s crime.” Above three weeks later, on the 2nd of February, to wit “on the Friday after the feast of Our Lady the Virgin,” the sucklings were again brought before the court; and, as their owner, Jehan Bailly, openly repudiated them and refused to be answerable in any wise for their future good conduct, they were declared, as vacant property, forfeited to the noble damsel Katherine de Barnault, Lady of Savigny. This case is particularly interesting on account of the completeness with which theprocès verbalhas been preserved. (SeeAppendix M.)
Sometimes a fine was imposed upon the owner of the offending animal, as was the case with Jehan Delalande and his wife, who were condemned, on the 18th of April, 1499, by the bailiff of the Abbey of Josaphat near Chartres, to pay a fine of eighteen francs and to be confined in prison until this sum should be paid, “on account of the murder of a child named Gilon, aged five and a half years or thereabouts, perpetrated by a porker, aged three months or thereabouts.” The pig was condemned to be “hanged and executed by justice.” The owners were punished because they were supposed to have been culpably negligent of the child, who had been confided to their care and keeping, and not because they had, in the eye of the law, any proprietary responsibility for the infanticidal animal. The mulct implied remissness on theirpart as guardians or foster-parents of the infant. In general, as we have seen, the owner of the blood-guilty beast was considered wholly blameless and sometimes even remunerated for his loss. (VideAppendix N.)
According to the laws of the Bogos, a pastoral and nominally Christian tribe of Northern Abyssinia, a bull, cow or any other animal which kills a man is put to death; the owner of the homicidal beast is not held in any wise responsible for its crime, nevertheless he practically incurs a somewhat heavy penalty by not receiving any compensation for the loss of his property. This exercise of justice is quite common among the tribes of Central Africa. In Montenegro, horses, oxen and pigs have been recently tried for homicide and put to death, unless the owner redeemed them by paying a ransom.
On the 14th of June, 1494, a young pig was arrested for having “strangled and defaced a young child in its cradle, the son of Jehan Lenfant, a cowherd on the fee-farm of Clermont, and of Gillon his wife,” and proceeded against “as justice and reason would desire and require.” Several witnesses were examined, who testified “on their oath and conscience” that “on the morning of Easter Day, as the father was guarding cattle and his wife Gillon was absent in the village of Dizy, the infant being left alone in its cradle, the said pig entered during the said time the said house anddisfigured and ate the face and neck of the said child, which, in consequence of the bites and defacements inflicted by the said pig, departed this life (de ce siècle trépassa).” The sentence pronounced by the judge was as follows, “We, in detestation and horror of the said crime, and to the end that an example may be made and justice maintained, have said, judged, sentenced, pronounced and appointed, that the said porker, now detained as a prisoner and confined in the said abbey, shall be by the master of high works hanged and strangled on a gibbet of wood near and adjoinant to the gallows and high place of execution belonging to the said monks, being contiguous to their fee-farm of Avin.” The crime was committed “on the fee-farm of Clermont-lez-Montcornet, appertaining in all matters of high, mean and base justice to the monks of the order of Premonstrants,” and the prosecution was conducted by “Jehan Levoisier, licenciate in law, the grand mayor of the church and monastery of St. Martin de Laon of the order of Premonstrants and the aldermen of the same place.” The plaintiffs were the friars, who preferred charges against the pig and procured the evidence necessary to its conviction. (VideAppendix O.)
In 1394, a pig was hanged at Mortaign for having sacrilegiously eaten a consecrated wafer; and in a case of infanticide, it is expressly stated in the plaintiff’s declaration that the pig killedthe child and ate of its flesh, “although it was Friday,” and this violation of thejejunium sextae, prescribed by the Church, was urged by the prosecuting attorney and accepted by the court as a serious aggravation of the porker’s offence.
Nothing would be easier than to multiply examples of this kind. Infanticidal swine were hanged in 1419 at Labergement-le-Duc, in 1420 at Brochon, in 1435 at Trochères, and in 1490 at Abbeville; the last-mentioned execution took place “under the auspices of the aldermanity and with the tolling of the bells.” It was evidently regarded as a very solemn affair. The records of mediæval courts, the chronicles of mediæval cloisters, and the archives of mediæval cities, especially such as were under episcopal sovereignty and governed by ecclesiastical law, are full of such cases. The capital punishment of a dumb animal for its crimes seems to us so irrational and absurd, that we can hardly believe that sane and sober men were ever guilty of such folly; yet the idea was quite familiar to our ancestors even in Shakespeare’s day, in the brilliant Elizabethan age of English literature, as is evident from a passage in Gratiano’s invective against Shylock:
“thy currish spiritGovern’d a wolf, who, hang’d for human slaughter,Even from the gallows did his fell soul fleet,And, whilst thou lay’st in thy unhallow’d dam,Infus’d itself in thee; for thy desiresAre wolfish, bloody, starv’d, and ravenous.”
That such cases usually came under the jurisdiction of monasteries and so-called spiritualities and were tried by their peculiarly organized tribunals, will not seem strange, when we remember that these religious establishments were great landed proprietors and at one time owned nearly one-third of all real estate in France. The frequency with which pigs were brought to trial and adjudged to death, was owing, in a great measure, to the freedom with which they were permitted to run about the streets and to their immense number. The fact that they were under the special protection of St. Anthony of Padua conferred upon them a certain immunity, so that they became a serious nuisance, not only endangering the lives of children, but also generating and disseminating diseases. It is recorded that in 1131, as the Crown Prince Philippe, son of Louis the Gross, was riding through one of the principal streets of Paris, a boar, belonging to an abbot, ran violently between the legs of his horse, so that the prince fell to the ground and was killed. In some cities, like Grenoble in the sixteenth century, the authorities treated them very much as we do mad dogs, empowering the carnifex to seize and slay them whenever found at large. On Nov. 20, 1664, the municipality of Naples passed an ordinance that the pigs, which frequented the streets and piazzas to the detriment and danger of the inhabitants, should be removed from the city to a wood or other uninhabited place or beslaughtered within twelve days on pain of the penalties already prescribed and threatened, probably in the order issued on Nov. 3, of the same year. It would seem, however, that these ordinances did not produce the desired effect, or soon fell into abeyance, since another was promulgated four years later, on Nov. 29, 1668, expelling the pigs from the city and calling attention to the fact that they corrupted the atmosphere and thus imperiled the public health. Sanitary considerations and salutary measures of this kind were by no means common in the Middle Ages, but were a gradual outgrowth of the spirit of the Renaissance. It was with the revival of letters that men began to love cleanliness and to appreciate its hygienic value as well as its æsthetic beauty. Little heed was paid to such things in the “good old times” of earlier date, when the test of holiness was the number of years a person went unwashed, and the growth of the soul in sanctity was estimated by the thickness of the layers of filth on the body, as the age of the earth is determined by the strata which compose its crust.
The freedom of the city almost universally enjoyed by mediæval swine is still maintained by their descendants in many towns of Southern Italy and Sicily, where they ramble at will through the streets or assemble in council before the palace of the prefect (cf. D’Addosio,Bestie Delinquenti, pp. 23-5).
In the latter half of the sixteenth century the tribunals began to take preventive measures against the public nuisance by holding the inhabitants responsible for the injuries done to individuals by swine running at large and by threatening with corporal as well as pecuniary punishment all persons who left “such beasts without a good and sure guard.” Thus it is recorded that on the 27th of March, 1567, “a sow with a black snout,” “for the cruelty and ferocity” shown in murdering a little child four months old, having “eaten and devoured the head, the left hand and the part above the right breast of the said infant,” was condemned to be “exterminated to death, and to this end to be hanged by the executioner of high justice on a tree within the metes and bounds of the said judicature on the highway from Saint-Firmin to Senlis.” The court of the judicatory of Senlis, which pronounced this sentence on complaint of the procurator of the seigniory of Saint-Nicolas, also forbade all the inhabitants and subjects of the said seignioralty to permit the like beasts to go unguarded on pain of an arbitrary fine and of corporal chastisement in default of payment. (VideAppendix P.)
But although pigs appear to have been the principal culprits, especially as regard infanticide, other quadrupeds were frequently called to answer for similar crimes. Thus, in 1314, a bull belonging to a farmer in the village ofMoisy, escaped into the highway, where it attacked a man and injured him so severely that he died a few hours afterwards. The ferocious animal was seized and imprisoned by the officers of Charles, Count of Valois, and after being tried and convicted was sentenced to be hanged. This judgment of the court was confirmed by the Parliament of Paris and the execution took place at Moisy-le-Temple on the common gallows. An appeal based upon the incompetency of the court was then made by the Procurator of the Order of the Hospital of the Ville de Moisy to the Parliament of La Chandeleur, which decided that the bull had met with its deserts and been justly put to death, but that the Count of Valois had no jurisdiction on the territory of Moisy, and his officials no power to institute proceedings in this case. The sentence was right in equity, but judicially and technically wrong, and could not therefore serve as a precedent.
There is also extant an order issued by the magistracy of Gisors in 1405, commanding payment to be made to the carpenter who had erected the scaffold on which an ox had been executed “for its demerits.” Again on the 16th of May, 1499, the judicial authorities of the Cistercian Abbey of Beaupré near Beauvais condemned a red bull to be “executed until death inclusively,” for having “killed with furiosity a lad of fourteen or fifteen years of age, named Lucas Dupont,” who was employed in tending the horned cattle of the farmer JeanBoullet. (VideAppendix Q.) In 1389, the Carthusians of Dijon caused a horse to be condemned to death for homicide; and as late as 1697 a mare was burned by the decision and decree of the Parliament of Aix, which, it must be remembered, was not a legislative body, but a supreme court of judicature, thus differing in its functions from the States General, the only law-making and representative assembly in France, that may be said to have corresponded in the slightest degree to the modern conception of a parliament.
In 1474, the magistrates of Bâle sentenced a cock to be burned at the stake “for the heinous and unnatural crime of laying an egg.” Theauto da féwas held on a height near the city called the Kohlenberg, with as great solemnity as would have been observed in consigning a heretic to the flames, and was witnessed by an immense crowd of townsmen and peasants. The statement made by Gross in hisKurze Basler Chronik, that the executioner on cutting open the cock found three more eggs in him, is of course absurd; we have to do in this case not with a freak of nature, but with the freak of an excited imagination tainted with superstition. Other instances of this kind have been recorded, one in the Swiss Prättigau as late as 1730, although in many cases the execution of the gallinaceous malefactor was more summary and less ceremonious than at Bâle.
Theoeuf coquatriwas supposed to be theproduct of a very old cock and to furnish the most active ingredient of witch ointment. When hatched by a serpent or a toad, or by the heat of the sun it brought forth a cockatrice or basilisk, which would hide in the roof of the house and with its baneful breath and “death-darting eye” destroy all the inmates. Many naturalists believed this fable as late as the eighteenth century, and in 1710 the French savant Lapeyronie deemed this absurd notion worthy of serious refutation, and read a paper, entitled “Observation sur les petits oeufs de poule sans jaune, que l’on appelle vulgairement oeufs de Coq,” before the Academy of Sciences in order to prove that cocks never lay and that the small and yolkless eggs attributed to them owe their peculiar shape and condition to a disease of the hen resulting in a hydropic malformation of the oviduct. A farmer brought him several specimens of this sort, somewhat larger than a pigeon’s egg, and assured him that they had been laid by a cock in his own barnyard. On opening one of them, M. Lapeyronie was surprised to find only a very slight trace of the yolk resembling “a small serpent coiled.” He now began to suspect that the cock might be an hermaphrodite, but on killing and dissecting it discovered nothing in support of this theory, the internal organs being all perfectly healthy and normal. But although the unfortunate chanticleer had fallen a victim to the scientific investigation ofa popular delusion, the eggs in question continued to be produced, until the farmer by carefully watching the fowls detected the hen that laid them. The dissection showed that the pressure of a bladder of serous fluid against the oviduct had so contracted it, that the egg in passing had the yolk squeezed out of it, leaving merely a yellowish discoloration that looked like a worm. Another peculiarity of this hen was that she crowed like “a hoarse cock” (un coq enroué), only more violently; a phenomenon also a source of terror to the superstitious, but ascribed by M. Lapeyronie to the same morbid state of the oviduct and the consequent pain caused by the passage of the egg (Mémoires de l’Académie de Sciences.Paris, 1710, pp. 553-60.)
A Greek physiologus of the twelfth century, written in verse, calls the animal hatched from the egg of an old cock επτεινάρια, a name which would imply some sort of winged creature. It was “sighted like the basilisk,” and endowed also in other respects with the same fatal qualities.
In the case of a valuable animal, such as an ox or a horse, the severity of retaliatory justice was often tempered by economical considerations and the culprit confiscated, but not capitally punished. Thus as early as the twelfth century it is expressly stated that “it is the law and custom in Burgundy that if an ox or a horse commit one or several homicides, it shallnot be condemned to death, but shall be taken by the Seignior within whose jurisdiction the deed was perpetrated or by his servitors and be confiscated to him and shall be sold and appropriated to the profit of the said Seignior; but if other beasts or Jews do it, they shall be hanged by the hind feet” (Coustumes et Stilles de Bourgoigne, § 197 in Giraud:Essai sur l’Histoire du Droit Francais, II. p. 302; quoted by Amira). It was a cruel irony of the law that conferred upon pigs and Jews a perfect equality of rights by sending them both to the scaffold.
Animals were put on a par with old crones in bearing their full share of persecution during the witchcraft delusion. Pigs suffered most in this respect, since they were assumed to be peculiarly attractive to devils, and therefore particularly liable to diabolical possession, as is evident from the legion that went out of the lunatic and were permitted, at their own request, to enter into the Gadarene herd of swine. But Beelzebub did not disdain to become incarnate in all sorts of creatures, such as cats, dogs of high and low degree, wolves, night-birds and indeed in any beast, especially if it chanced to be black. Goats, it is well known, were not a too stinking habitation for him, and even to dwell in skunks he did not despise. The perpetual smell of burning sulphur in his subterranean abode may render him proof against anyless 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 wellas 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. (SeeAppendix R.)
Lex talionisis 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 forfoot, burning for burning, wound for wound, stripe for stripe.” An old Anglo-Saxon law made this retaliatory principle ofmembrum pro membrothe 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 surelystoned, 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. (VideAppendix 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’sStrafrechtliche 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 inferencea 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 Godcommanded 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 beeneffaced 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 theOnomasticonof Julius Pollux and theLexicon Decem Oratorum Graecorumof 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-placeforbidding 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 themasses,” 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 hisMetamorphosis 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 formerlyon 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 measurestaken 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 deathof 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. TheSchwabenspiegel, 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 ishighly 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 beendeprived 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 wereto 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 ofthe 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 graveoffence which he had committed. Ivan Basilovitch, a Muscovite prince, ordered that an ambassador, who did not uncover in his presence, should have his hat nailed to his head; and it is a feeble survival of the same idea of proper punishment that makes the American farmer nail the dead hawk to his barn-door, just as in former times it was customary to crucify highway robbers at cross-roads.
According to an old Roman law ascribed to Numa Pompilius, the oxen which plowed up a boundary stone, as well as their driver, were sacrificed to Jupiter Terminus. In the early development of agriculture, and the transition from communal to personal property in land, this severe enactment was deemed necessary to the protection of the “sacra saxa,” by which the boundary lines of the fields were defined. Only by making the violation of enclosed ground a sacrilege was it possible to prevent encroachments upon it, so strong was the lingering prejudice against individual possessions of this kind running in the blood of a people descended from nomadic tribes of herdsmen, who regarded sedentary communities engaged in tilling the soil as their direst foes. The lawgiver knew very well that the oxen were involuntary agents, and that the plowman alone was culpable; but when a religious atonement is to be made and an angry god appeased, moral distinctions determining degrees of responsibility are uniformly ignored, and the innocent are doomed to sufferwith 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 themotio terminior 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 thehuman 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 otherraison 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 peopleaccustomed 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 deodandspro rege, and are to be sold for the benefit of the poor.
Omnia quae movent ad mortem sunt Deo dandais 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 bedeclared 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 wasgesundor 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 famoustarnkappeof 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 hadbeen 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. (VideKraut’sStadtrecht 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 theCommentariescould 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.