Chapter 23

35Leibniz,Essais de Theodicée, p. 182sq.Lessona, quoted by d’Addosio,Bestie delinquenti, p. 145.

36St. Augustine,Quæstiones in Leviticum, 74 (ad Lev.xx. 16): “Nam pecora inde credendum est jussa interfici, quia tali flagitio contaminata, indignam refricant facti memoriam” (Migne,Patrologiæ cursus, xxxiv. 709).

37Gratian,Decretum, ii. 15. 1. 4.Cf.Mishna, fol. 54, quoted by Rabbinowicz,Législation criminelle du Talmud, p. 116.

38Ayrault,Des procès faicts au cadaver, aux cendres, à la mémoire, aux bestes brutes, fol. 24. Ortolan,Éléments du droit pénal, p. 188. Tissot,Le droit pénal, i. 19sq.

39Thonissen,Le droit pénal de la république Athénienne, p. 414.

40Du Boys, quoted by d’Addosio,op. cit.p. 139.

41Lessona, quotedibid.p. 145.

42Cf.Post,Die Grundlagen des Rechts, p. 359; Friedrichs, ‘Mensch und Person,’ inDas Ausland, 1891, pp. 300, 315; and, especially, d’Addosio,op. cit.p. 146sqq.: “Nel medioevo si punì l'animale perchè lo si ritenne in certo modoconsciodelle sue azioni, in certo modolibero, in certo modoresponsabile.”

43von Amira.op. cit.p. 9.

44Beaumanoir,Les coutumes du Beauvoisis, lxix. 6, vol. ii. 485sq.Chambers,op. cit.i. 127. Lichtenberg,Vermischte Schriften, iv. 481.

45Lex Salica, edited by Hessels, coll. 209–212, 215.

46Ancient Laws of Ireland, iv. 179.

47Chambers,op. cit.i. 128.

48Ancien Coutumier de Bourgogne, 23 (Revue historique de droit français et étranger, iii. 549): “Il deust hauoir faire justice del larron.”

49Pertile,loc. cit.p. 148: “LaCarta de Logud’Eleonora giudicessa d’Arborea (1395) prescrive: che venendo trovato un asino in danno sui fondi altrui, per la prima volta gli si tagli un orecchio; la seconda, l’altro; e la terza, si confischi la bestia consegnandola alla corte principesca.”Cf.Vendîdâd, xiii. 32sqq.

50d’Addosio,op. cit.p. 16.

Considering the feelings to which even the cultured mind is susceptible with reference to a mischievous beast, it is not difficult to understand the attitude of the ignorant. The savage, not only momentarily, while in a rage, but permanently and in cold blood, obliterates the boundaries between man and beast. He regards all animals as practically on a footing of equality with man. He believes that they are endowed with feelings and intelligence like men, that they are united into families and tribes like men, that they have various languages like human tribes, that they possess souls which survive the death of the bodies just as is the case with human souls. He tells of animals that have been the ancestors of men, of men that have become animals, of marriages that take place between men and beasts. He also believes that he who slays an animal will be exposed to the vengeance either of its disembodied spirit, or of all the other animals of the same species which, quite after human fashion, are bound to resent the injury done to one of their number.51Is it not natural, then, that the savage should give like for like? If it is the duty of animals to take vengeance upon men, is it not equally the duty of men to take vengeance upon animals?

51Tylor,Primitive Culture, i. 467sqq.Frazer,Golden Bough, ii. 389sqq.Liebrecht,Zur Volkskunde, p. 17. Achelis,Moderne Völkerkunde, p. 373sqq.Idem, ‘Animal Worship,’ inOpen Court, xi. 705sq.Waitz,Anthropologie der Naturvölker, ii. 180 (Negroes). von den Steinen,Unter den Naturvölkern Zentral-Brasiliens, p. 351. Im Thurn,Among the Indians of Guiana, p. 350sqq.Dorman,Origin of Primitive Superstitions, pp. 223, 253. Lumholtz,Unknown Mexico, i. 331 (Tarahumares). Mooney, ‘Myths of the Cherokee,’ inAnn. Rep. Bur. Ethn.xix. pp. 250, 261sq.Nelson, ‘Eskimo about Bering Strait,’ibid.xviii. 423. Hose and McDougall, ‘Relations between Men and Animals in Sarawak,’ inJour. Anthr. Inst.xxxi. 173sqq., especially p. 205sq.

Nor are these beliefs restricted to savages. Muhammedans maintain, not only that animals will share with men the general resurrection, but that they will be judged according to their works. Their tradition says that God “will raise up animals at the last day to receivereward and to show His perfection and His justice. Then the hornless goat will be revenged on the horned one.”52We can hardly wonder that the Zoroastrian law inflicted punishments on dogs which hurt men or animals, when we read in the Vendîdâd that a dog has the characters of eight sorts of people.53The fable and theMärchenfor a long time related in good earnest their stories of animals that behaved exactly like men.54Even to this day, in certain districts of Europe, as soon as a peasant is dead, it is customary for his heir to announce the change of ownership to every beast in the stall, and to the bees also;55and in some parts of Poland, when the corpse of the rustic proprietor is being carried out, all his cattle are let loose, that they may take leave of their old master.56In the Middle Ages animals were sometimes accepted as witnesses; a man who was accused of having committed a murder in his house appeared before the tribunal with his cat, his dog, and his cock, swore in their presence that he was innocent, and was acquitted.57It was not only the common people that ascribed intelligence to beasts. According to Porphyry, all the philosophers who have endeavoured to discover the truth concerning animals have acknowledged that they to a certain extent participate of reason;58and the same idea is expressed by Christian writers of a much later date. In the sixteenth century, Benoît wrote that animals often speak.59In the middle of the following century, Hieronymus Rorarius published a book entitled ‘Quod animalia bruta ratione utantur melius homine.’ And about the same time Johann Crell, in his ‘Ethica Christiana,’ expressed the opinion that animals at all events possess faculties analogous to reason and free-will, that they have something similar to virtues and vices, that theydeserve something like rewards and punishments, and are consequently punished by God and man.60This, as it seems to me, is the correct explanation of the mediæval practice of punishing animals, even though, in some cases, as M. Ménabréa observes, the obnoxious animal was regarded as an embodiment of some evil spirit and was punished as such.61The beast or insect was retaliated upon for the simple reason that it was regarded as a rational being.

52Koran, vi. 38. Sell,Faith of Islám, p. 223.

53Vendîdâd, xiii. 44sqq.

54See Grimm,Reinhart Fuchs, p. i.sqq.

55Ralston,Songs of the Russian People, p. 315. Wuttke,Der deutsche Volksaberglaube der Gegenwart, p. 428.

56Ralston,op. cit.p. 318.

57Michelet,Origines du droit français, pp. 76, 279sq.Chambers,op. cit.i. 129.

58Porphyry,De abstinentia ab esu animalium, iii. 6.

59Benoît, quoted by d’Addosio,op. cit.p. 214.

60Crell,Ethica Christiana, ii. 1, p. 65sq.:—“Hinc aliquid etiam virtuti et vitio simile, seu recte et prave factum: quorum illud est, cum bruta naturæ suæ ductum sequuntur, hoc cum a naturali via exorbitant. Unde tandem etiam aliquidpræmioaut pœnæ, et huic quidem maxime simile. Unde bestias etiam a Deo punitas, aut pœnas certas lege illis constitutas, cernimus.”

61Ménabréa,De l’origine de la forme et de l’esprit des jugements rendus au moyen-age contre les animaux, p. 35.

At the earlier stages of civilisation even inanimate things are treated as if they were responsible agents. The Kukis take revenge not only on a murderous tiger, but on a murderous tree. “If a man should happen to be killed, by an accidental fall from a tree, all his relations assemble, and cut it down; and however large it may be, they reduce it to chips, which they scatter in the winds, for having, as they say, been the cause of the death of their brother.”62Among the aborigines of Western Victoria, “when the spear or weapon of an enemy has killed a friend, it is always burnt by the relatives of the deceased; but those captured in battle are kept, and used by the conquerors.”63The North American Redskins, when struck with an arrow in battle, “will tear it from the wound, break and bite it with their teeth, and dash it on the ground.”64The British Guiana Indian, when hurt either by falling on a rock, or by the rock falling on him, “attributes the blame, by a line of argument still not uncommon in more civilised life, to the rock.”65The gods of the Vedic age cursed the trees which had injured them.66Xerxes commandedthat the Hellespont should be stricken with three hundred lashes,67and Cyrus “wreaked his vengeance” on the river Gyndes by dispersing it through three hundred and sixty channels.68Pausanias relates that when Theagenes had died, one of his enemies went up to his statue every night, and whipped the brass. At last, however, “the statue checked his insolence by falling on him; but the sons of the deceased prosecuted the statue for murder. The Thasians sank the statue in the sea, herein following the view taken by Draco, who, in the laws touching homicide which he drew up for the Athenians, enacted that even lifeless things should be banished if they fell on anybody and killed him.”69As Dr. Frazer remarks, the punishment of inanimate objects for having accidentally been the cause of death was probably much older than Draco.70At Athens there was a special tribunal for the purpose.71Demosthenes states that, if a stone or a piece of wood or iron or any such thing fell and struck a man, and the person who threw the thing was not known, but the people knew, and were in possession of, the object which killed the man, that object was brought to trial at the court of the Prytaneum.72Plato lays down the following rule in his ‘Laws’:—“If any lifeless thing deprive a man of life, except in the case of a thunderbolt or other fatal dart sent from the gods,—whether a man is killed by lifeless objects falling upon him, or by his falling upon them, the nearest of kin shall appoint the nearest neighbour to be a judge, and thereby acquit himself and the whole family of guilt. And he shall cast forth the guilty thing beyond the border.”73Teutonic law, which still recognised the principle of private revenge, treated the inanimate murderer with less ceremony.74According to the Laws of Alfred, when men were at work together ina forest, and by misadventure one let a tree fall on another, which killed him, the tree belonged to the dead man’s kinsfolk if they took it away within thirty days.75Later on, in England, a thing by which death was caused was “forfeited to God, that is to the King, God’s Lieutenant on earth, to be distributed in works of charity for the appeasing of God’s wrath.”76This law remained in force till 1846.77

62Macrae, inAsiatick Researches, vii. 189sq.

63Dawson,Australian Aborigines, p. 53.

64Robertson,History of America, i. 351sq.

65Im Thurn,op. cit.p. 354.

66Oldenberg,Religion des Veda, p. 518.

67Herodotus, vii. 35.

68Ibid.i. 190.

69Pausanias, vi. 11. 6.Cf.ibid.v. 27. 10.

70Frazer,Pausanias, ii. 371.

71Aristotle,De republica Atheniensium, 57. Pausanias, i. 28. 10.

72Demosthenes,Contra Aristocratem, 76, p. 645.

73Plato,Leges, ix. 873sq.

74See Trummer,Vorträge über Tortur, &c.i. 376sq.Brunner,Forschungen, p. 521sqq.

75Laws of Alfred, ii. 13.

76Coke.Third Part of the Institutes of the Laws of England, p. 57.

77Stephen,History of the Criminal Law of England, iii. 78. Pollock and Maitland,History of English Law before the Time of Edward I.ii. 473.

In some of these cases superstitious dread may have been a motive for destroying or banishing the instrument of death. There are facts which prove that such an object is looked upon as a source of danger. According to the Ripuarian law, people are forbidden to make use of a thing which has been “auctor interfectionis”;78and in Norway, in quite modern times, sickles, axes, and other objects with which men have been killed, have been seen lying about abandoned and unused.79Again, among the aborigines of West Australia, if a person has been killed by a thrust of the native wooden spear,ghici, his country-men think that his soul remains in the point of the weapon which caused his death, and they burn it after his burial, so that the soul may depart.80But it is also obvious that an inanimate thing which is the cause of a hurt is apt to evoke a genuine feeling of resentment. We kick the chair over which we stumble, we curse the stone which hurts us; Dr Nansen says that, when he was crossing Greenland, it would have caused him “quite real satisfaction” to destroy a sledge which was“heavy to draw.”81When we thus behave as if the offending object were capable of feeling our resentment, we for a moment vaguely believe that it is alive.82But our anger very soon passesaway when we realise the true nature of its object. The case is different with men at earlier stages of civilisation. They do not suppose that things which hurt them are senseless; on the contrary, they personify such things, not only hastily and momentarily, but deliberately and permanently; hence their resentment lasts. The Guiana Indian, says Sir E. F. Im Thurn, “attributes any calamity which may happen to him to the intention of the immediate instrument of its infliction, and he not unnaturally sees in the action of this instrument evidence of its possession of a spirit.”83Trees, especially, are very commonly supposed to possess souls similar to those of men, and are treated accordingly.84Pausanias writes that “lifeless things are said to have inflicted of their own accord a righteous punishment on men”; and as the best and most famous instance of this he mentions the sword of Cambyses.85In England the inanimate murderer was to be given up to the kinsmen of the slain surely not as a compensation for the loss they had suffered, but as an object upon which their vengeance was to be wreaked.86It was calledla bane, that is, “the slayer”; Bracton also calls it the “malefactor.”87It did not matter that its owner was recognised as innocent; the punishment was not intended for him.88But in some well-defined cases the “slayer” was free from guilt. A ship or other vessel from which a person was drowned by misfortune was not forfeited as deodand in case the accident happened in salt water—as Coke indicates, on account of the great dangers to which the vessel is exposed “upon the raging waves in respect of the wind and tempest.”89Moreover, if a boy under fourteen fell from a cart, or from a horse, it wasno deodand, “because he was not of discretion to look to himself,” and so the cart, or horse, could not be regarded as blamable. But if a cart ran over a boy, or a tree fell upon him, or a bull gored him, it was deodand, because, apparently, it went out of its way to kill him.90The fact of motion was one of considerable importance in the case of animals and inanimate things, as it was in the case of men. Thus Bracton would distinguish between the horse which throws a man and the horse off which a man tumbles, between the tree that falls and the tree against which a man is thrown; and, as a general rule, a thing was not a deodand unless it could be said “movere ad mortem.”91If anybody was drowned by falling from a ship under sail, not only the ship itself but the things moving in it were deemed the cause of his death; whereas the merchandise lying at the bottom of the vessel was not presumed to be guilty, and consequently was not forfeited.92But if any particular merchandise fell upon a person and caused his death, that merchandise became a deodand, and not the ship.93As Mr. Holmes observes, a ship is the most persistent example of motion giving personality to a thing. “She” is still personified not only in common parlance, but in courts of justice. In maritime cases of quite recent date judges of great repute have pronounced the proceeding to be, not against the owner, but “against the vessel for an offence committed by the vessel.”94

78Lex Ripuariorum, lxx. 1.

79Liebrccht,Zur Volkskund, p. 313.

80Salvado,Mémoires historiques sur l’Australie, p. 260sq.

81Nansen,Eskimo Life, p. 213sq.

82Cf.Dugald Stewart,Philosophy of the Active and Moral Powers of Man, i. 125; Hall, ‘Study of Anger,’ inAmerican Journal of Psychology, x. 506sq.

83Im Thurn,op. cit.p. 354.

84See Frazer,Golden Bough, i. 169sqq.

85Pausanias, i. 28. 11.

86Pollock and Maitland, ii. 474.

87Bracton,De Legibus et Consuetudinibus Angliæ, fol. 116, vol. ii. 236sq.

88Holmes,Common Law, p. 25.

89Bracton,op. cit.fol. 122, vol. ii. 286sq.Coke,op. cit.p. 58. Sir James Stephen supposes (op. cit.iii. 78) that “deodands were not in use at sea, because the local customs of England did not extend to the high seas.” But Coke expressly says (p. 58) that there can be no deodand of the ship even “inaqua salsa, being any arm of the sea, though it be in the body of the County.”

90Coke,op. cit.p. 57. Hale,History of the Pleas of the Crown, i. 422. Stephen,op. cit.iii. 78.

91Bracton,op. cit.fol. 136 b, vol. ii, 400sq.Hale,op. cit.i. 420sqq.Pollock and Maitland,op. cit.ii. 474, n. 4. Stephen,op. cit.iii. 77. Holmes,op. cit.p. 25sq.

92Britton, i. 2. 14, vol. i. 16.

93Hale,op. cit.i. 422.

94Holmes,op. cit.p. 29.

Like the lower animals, human beings in their earliest childhood are incapable of forming notions of right and wrong, hence they are not responsible for any act of theirs. Responsibility commences with the dawn of a moral consciousness, and increases along with the evolution of the intellect. Only by slow degrees the capacity of recognisingact as right or wrong develops in the child. It soon learns that certain acts are forbidden, but to know that an act is forbidden is not the same as to recognise it as wrong. Nor does the knowledge of a moral rule involve the ability to apply that rule in particular cases. Nor can the youthful intellect be expected to possess the same degree of foresight as the intellect of a grown-up man. Hence the total or partial irresponsibility of childhood and early youth.

This irresponsibility is admitted by the laws of civilised nations. In England,95Scotland,96and the United States,97children under seven are absolutely exempt from punishment. In other modern countries criminal responsibility does not commence until the age of nine,98ten,99twelve,100or fourteen.101In some it is to be decided in each case whether a child is punishable or not.102Thus the French Code Pénal provides that a person under eighteen years of age shall not be punished if it be decided that he has acted without discernment (sans discernement) whereas, if he has acted with discernment (avec discernement), his punishment is to be mitigated according to a fixed scale.103Most laws set down an intermediate period between that of complete irresponsibility and that of complete responsibility. According to English law there is a presumption that children from seven to fourteen are not possessed of the degree of knowledge essential to criminality, though this presumption may be rebutted by proof to the contrary;104and, according to the German Strafgesetzbuch, a person from twelve to eighteen may be acquitted if, when he committed the offence, he didnot possess the intelligence requisite to know that it was criminal.105Other laws, again, regard a certain ageeo ipsoas a ground of extenuation, its upper limit being fixed sometimes at sixteen,106sometimes at eighteen,107sometimes at twenty,108sometimes at twenty-one.109

95Stephen,op. cit.ii. 97sq.

96Erskine-Rankine,Principles of the Law of Scotland, p. 546.

97Bishop,Commentaries on the Criminal Law, § 368, vol. i. 209.

98ItalianCodice Penale, art. 53. SpanishCódigo Penal reformado, art. 8, § 2.

99Austrian (Finger,op. cit.i. 110), Dutch (van Hamel, inLégislation pénale comparée, edited by von Liszt, p. 444), Portuguese (Tavares de Medeiros,ibid.p. 199), Russian (Foinitzki,ibid.p. 529) law.

100GermanStrafgesetzbuch, art. 55.

101Swedish (Uppström, inLégislation pénale comparée, p. 483), Finnish (Forsman,ibid.p. 565) law.

102French, Belgian, Ottoman law (Rivière,ibid.p. 7).

103Code Pénal, art. 66sqq.

104Stephen,op. cit.ii. 98. Kenny,Outlines of Criminal Law, p. 50.

105Strafgesetzbuch, art. 56.

106Dutch law (van Hamel,loc. cit.p. 444).

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