CHAPTER II

MEDIÆVAL AND MODERN PENOLOGY

Recent change in the spirit of criminal jurisprudence-- Mediæval tribunals cut with the executioner’s sword the intricate knots which the modern criminalist essays to untie--Phlebotomy a panacea in medicine and law--Restless ghosts of criminals who died unpunished--Execution of vampires and were-wolves--Case of a were-wolf who devoured little children “even on Friday”--Pope Stephen VI. brings the corpse of his predecessor to trial--Mediæval and modern conceptions of culpability--Problems of psycho-pathological jurisprudence--Degrees of mental vitiation--Italians pioneers in the scientific study of criminality--Effects of these speculations upon legislation--Barbarity of mediæval penal justice--Gradual abolition of judicial torture--Cruel sentence pronounced by Carlo Borromeo--“Blue Laws” a great advance on contemporary English penal codes--Moral and penal responsibility--Atavism and criminality--Physical abnormities--Capacity and symmetry of the skull-- Circumvolutions of the brain--Tattooing not a peculiarity of criminals, but simply an indication of low æsthetic sense-- Theories of the origin and nature of crime--Intelligence not always to be measured by the size of the encephalon-- Remarkable exceptions in Gambetta, Bichat, Bischoff and Ugo Foscolo--Advanced criminalists justly dissatisfied with the penal codes of to-day--Measures proposed by Lombroso and his school--Their conclusions not sustained by facts--Crime through hypnotic suggestion--Difficulty of defining insanity--Coleridge’s definition too inclusive-- Predestination and evolution--Criminality among the lower animals--Punishment preventive or retributive-- Schopenhauer’s doctrine of responsibility for character-- Remarkable trial of a Swiss toxicomaniac, Marie Jeanneret--“Method in Madness” not uncommon--Social safety the supreme law--Application of this principle to “Cranks”--Spirit of imitation peculiarly strong in such classes--Contagiousness of crime--Criminology now in a period of transition _p._ 193

APPENDIX

A. De Actis Scindicorum Communitatis Sancti Julliani agentium contra Animalia Bruta ad formam muscarum volantia coloris viridis communi voce appellata Verpillions seu Amblevins _p._ 259

B. Traite des Monitoires avec un Plaidoyer contre les Insectes par Spectable Gaspard Bailly _p._ 287

C. Allegation, Replication, and Judgment in the process against field-mice at Stelvio in 1519 _p._ 307

D. Admonition, Denunciation, and Citation of the Inger by the Priest Bernhard Schmid in the name and by the authority of the Bishop of Lausanne in 1478 _p._ 309

E. Decree of Augustus, Duke of Saxony and Elector, commending the action of Parson Greysser in putting the sparrows under ban, issued at Dresden in 1559 _p._ 311

F. Chronological List of Excommunications and Prosecutions of Animals from the ninth to the nineteenth century _p._ 313

G. Receipt, dated January 9, 1386, in which the hangman of Falaise acknowledges to have been paid by the Viscount of Falaise ten sous and ten deniers tournois for the execution of an infanticidal sow, and also ten sous tournois for a new glove _p._ 335

H. Receipt, dated September 24, 1394, in which Jehan Micton acknowledges that he received the sum of fifty sous tournois from Thomas de Juvigney, Viscount of Mortaing, for having hanged a pig, which had killed and murdered a child in the parish of Roumaygne _p._ 336

I. Attestation of Symon de Baudemont, Lieutenant of the Bailiff of Nantes and Meullant, made by order of the said bailiff and the king’s proctor, on March 15, 1403, and certifying to the expenses incurred in executing a sow that had devoured a small child _p._ 338

J. Receipt, dated October 16, 1408, and signed by Toustain Pincheon, jailer of the royal prisons in the town of Pont de Larche, acknowledging the payment of nineteen sous and six deniers tournois for food furnished to sundry men and to one pig kept in the said prisons on charge of crime _p._ 340

K. Letters Patent, by which Philip the Bold, Duke of Burgundy, on September 12, 1379, granted the petition of the Friar Humbert de Poutiers, Prior of the town of Saint-Marcel-lez-Jussey, and pardoned two herds of swine, which had been condemned to suffer the extreme penalty of the law as accomplices in an infanticide committed by three sows _p._ 342

L. Sentence pronounced by the Mayor of Loens de Chartres on the 12th of September, 1606, condemning Guillaume Guyart to be hanged and burned together with a bitch _p._ 344

M. Sentence pronounced by the Judge of Savigny in January, 1457, condemning to death an infanticidal sow. Also the sentence of confiscation pronounced nearly a month later on the six pigs of the said sow for complicity in her crime _p._ 346

N. Sentence pronounced, April 18, 1499, in a criminal prosecution instituted before the Bailiff of the Abbey of Josaphat, in the Commune of Sèves, near Chartres, against a pig condemned to be hanged for having killed an infant. In this case the owners of the pig were fined eighteen francs for negligence, because the child was their fosterling _p._ 352

O. Sentence pronounced, June 14, 1494, by the Grand Mayor of the church and monastery of St. Martin de Laon, condemning a pig to be hanged and strangled for infanticide committed on the fee-farm of Clermont-lez-Montcornet _p._ 354

P. Sentence pronounced, March 27, 1567, by the Royal Notary and Proctor of the Bailiwick and Bench of the Court of Judicatory of Senlis, condemning a sow with a black snout to be hanged for her cruelty and ferocity in murdering a girl of four months, and forbidding the inhabitants of the said seignioralty to let such beasts run at large on penalty of an arbitrary fine _p._ 356

Q. Sentence of death pronounced upon a bull, May 16, 1499, by the Bailiff of the Abbey of Beaupré, for furiously killing Lucas Dupont, a young man of fourteen or fifteen years of age _p._ 358

R. Scene from Racine’s comedy _Les Plaideurs_, in which a dog is tried and condemned to the galleys for stealing a capon _p._ 360

S. Record of the decision of the Law Faculty of the University of Leipsic condemning a cow to death for having killed a woman at Machern near Leipsic, July 20, 1621 _p._ 361

BIBLIOGRAPHY _p._ 362

INDEX _p._ 373

THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS

INTRODUCTION

The present volume is the result of the revision and expansion of two essays entitled “Bugs and Beasts before the Law,” and “Modern and Mediæval Punishment,” which appeared in _The Atlantic Monthly_, in August and September 1884. Since that date the author has collected a vast amount of additional material on the subject, which has also been discussed by other writers in several publications, the most noteworthy of which are Professor Karl von Amira’s _Thierstrafen und Thierprocesse_ (Innsbruck, 1891), Carlo d’Addosio’s _Bestie Delinquenti_ (Napoli, 1892), and G. Tobler’s _Thierprocesse in der Schweiz_ (Bern, 1893), but in none of these works, except the first-mentioned, are there any important statements of facts or citations of cases in addition to those adduced in the essays already mentioned, for which the writer was indebted chiefly to the extensive and exceedingly valuable researches of Berriat-Saint-Prix and M. L. Ménebréa, and the _Consilium Primum_ of Bartholomew Chassenée, cited in the appended bibliography. Professor Von Amira is a very distinguished and remarkably keen-sighted jurisprudent and treats the matter exclusively from a jurisprudential point of view, his main object being to discover some general principle on which to explain these strange phenomena, and thus to assign to them their proper place and true significance in the historical evolution of the idea of justice and the methods of attaining it by legal procedure.

Von Amira draws a sharp line of technical distinction between Thierstrafen and Thierprocesse; the former were capital punishments inflicted by secular tribunals upon pigs, cows, horses, and other domestic animals as a penalty for homicide; the latter were judicial proceedings instituted by ecclesiastical courts against rats, mice, locusts, weevils, and other vermin in order to prevent them from devouring the crops, and to expel them from orchards, vineyards, and cultivated fields by means of exorcism and excommunication. Animals, which were in the service of man, could be arrested, tried, convicted and executed, like any other members of his household; it was, therefore, not necessary to summon them to appear in court at a specified time to answer for their conduct, and thus make them, in the strict sense of the term, a party to the prosecution, for the sheriff had already taken them in charge and consigned them to the custody of the jailer. Insects and rodents, on the other hand, which were not subject to human control and could not be seized and imprisoned by the civil authorities, demanded the intervention of the Church and the exercise of its supernatural functions for the purpose of compelling them to desist from their devastations and to retire from all places devoted to the production of human sustenance. The only feasible method of staying the ravages of these swarms of noxious creatures was to resort to “metaphysical aid” and to expel or exterminate them by sacerdotal conjuring and cursing. The fact that it was customary to catch several specimens of the culprits and bring them before the seat of justice, and there solemnly put them to death while the anathema was being pronounced, proves that this summary manner of dealing would have been applied to the whole of them, had it been possible to do so. Indeed, the attempt was sometimes made to get rid of them by setting a price on their heads, as was the case with the plague of locusts at Rome in 880, when a reward was offered for their extermination, but all efforts in this direction proving futile, on account of the rapidity with which they propagated, recourse was had to exorcisms and be-sprinklings with holy water.

D’Addosio speaks of the actions brought against domestic animals for homicide as penal prosecutions, and those instituted against insects and vermin for injury done to the fruits of the field as civil suits (_processi civili_); but the latter designation is not correct in any proper sense of the term, since these actions were not suits to recover for damages to property, but had solely a preventive or prohibitive character. The judicial process was preliminary to the utterance of the malediction and essential to its efficacy. Before fulminating an excommunication the whole machinery of justice was put in motion in order to establish the guilt of the accused, who were then warned, admonished, and threatened, and, in cases of obduracy, smitten with the _anathema maranatha_ and devoted to utter destruction. As with all bans, charms, exorcisms, incantations, and other magical hocus-pocus, the omission of any formality would vitiate the whole procedure, and, by breaking the spell, deprive the imprecation or interdiction of its occult virtue. Ecclesiastical thunder would thus be robbed of its fatal bolt and reduced to mere empty noise, the harmless explosion of a blank cartridge.

The Church was not wholly consistent in its explanations of these phenomena. In general the swarms of devouring insects and other noxious vermin are assumed to have been sent at the instigation of Satan (_instigante sathana, per maleficium diabolicum_), and are denounced and deprecated as snares of the devil and his satellites (_diaboli et ministrorum insidias_); again they are treated as creatures of God and agents of the Almighty for the punishment of sinful man; from this latter point of view every effort to exterminate them by natural means would be regarded as a sort of sacrilege, an impious attempt to war upon the Supreme Being and to withstand His designs. In either case, whether they were the emissaries of a wicked demon or of a wrathful Deity, the only proper and permissible way of relief was through the offices of the Church, whose bishops and other clergy were empowered to perform the adjurations and maledictions or to prescribe the penances and propitiations necessary to produce this result. If the insects were instruments of the devil, they might be driven into the sea or banished to some arid region, where they would all miserably perish; if, on the other hand, they were recognized as the ministers of God, divinely delegated to scourge mankind for the promotion of piety, it would be suitable, after they had fulfilled their mission, to cause them to withdraw from the cultivated fields and to assign them a spot, where they might live in comfort without injury to the inhabitants. The records contain instances of both kinds of treatment.

It was also as a protection against evil spirits that the penalty of death was inflicted upon domestic animals. A homicidal pig or bull was not necessarily assumed to be the incarnation of a demon, although it was maintained by eminent authorities, as we have shown in the present work, that all beasts and birds, as well as creeping things, were devils in disguise; but the homicide, if it were permitted to go unpunished, was supposed to furnish occasion for the intervention of devils, who were thereby enabled to take possession of both persons and places. This belief was prevalent in the Middle Ages, and is still taught by the Catholic Church. In a little volume entitled _Die Verwaltung des Exorcistats nach Massgabe der römischen Benediktionale_, of which a revised and enlarged edition was published at Stuttgart in 1893 for the use of priests as a manual of instruction in performing exorcisms, it is expressly stated by the reverend author, Dr. Theobald Bischofberger, that a spot, where a murder or other heinous crime has been committed, if the said crime remains undetected or unexpiated, is sure to be infested by demons, and that the inmates of a house or other building erected upon such a site will be peculiarly liable to diabolical possession, however innocent they may be personally. Indeed, the more pure and pious they are, the greater will be the efforts of the demons to enter into and annoy them. Not only human beings, but also all cattle after their kind, and even the fowls of the barnyard are subject to infernal vexations of this sort. The infestation thus produced may continue for centuries, and, although the property may pass by purchase or inheritance into other hands and be held successively by any number of rightful owners, the demons remain in possession unaffected by legal conveyances. If each proprietor imagines he has an exclusive title to the estate, he reckons without the host of devils, who exercise there the right of squatter sovereignty and can be expelled only by sacerdotal authority. Dr. Bischofberger goes so far as to affirm that it behoves the purchaser of a piece of land to make sure that it is unencumbered by devils as well as by debts, otherwise he may have to suffer more from a demoniac lien than from a dead pledge or any other form of obligation in law. Information concerning the latter can be obtained at the registry of deeds, but it is far more difficult to ascertain whether the infernal powers have any claims upon it, since this knowledge can be derived only inferentially and indirectly from inquiries into the character of the proprietors for many generations and must always rest upon presumptive evidence rather than positive proof. Our author does not hesitate to assert that houses which have been the abodes of pious people from time immemorial ought to have a higher market value than the habitations of notoriously wicked families. It is thus shown that “godliness is profitable” not only “unto all things,” but also, as mediæval writers were wont to say, unto some things besides, which the apostle Paul in his admonitions to his “son Timothy” never dreamed of. We are also told that the _aura corrumpens_ resulting from diabolical infestation imparts to the dwelling a peculiar taint, which it often retains for a long time after the demons have been cast out, so that sensitive persons cannot enter such a domicile without getting nervously excited, slightly dizzy and all in a tremble. The carnal mind, which is at enmity with all supernatural explanations of natural phenomena, would seek the source of such sensations in an _aura corrumpens_ arising from the lack of proper ventilation, and find relief by simply opening the windows instead of calling in a priest with aspergills, and censers, and _benedictiones locorum_.

We have a striking illustration of this truth in the frequent cases of “bewitched kine.” European peasants often confine their cattle in stalls so small and low that the beasts have not sufficient air to breathe. The result is that a short time after the stalls are closed for the night the cattle get excited and begin to fret and fume and stamp, and are found in the morning weak and exhausted and covered with sweat. The peasant attributes these phenomena to witchcraft, and calls in an exorcist, who proceeds to expel the evil spirits. Before performing the ceremony of conjuration, he opens the doors and windows and the admission of fresh air makes it quite easy to cast out the demons. A German veterinarian, who reports several instances of this kind, tried in vain to convince the peasants that the trouble was due, not to sorcery, but to the absence of proper sanatory conditions, and finally, in despair of accomplishing his purpose in any other way, told them that if the windows were left open so that the witches could go in and out freely, the demons would not enter into the cattle. This advice was followed and the malign influence ceased.

The ancient Greeks held that a murder, whether committed by a man, a beast, or an inanimate object, unless properly expiated, would arouse the furies and bring pestilence upon the land; the mediæval Church taught the same doctrine, and only substituted the demons of Christian theology for the furies of classical mythology. As early as 864, the Council of Worms decreed that bees, which had caused the death of a human being by stinging him, should be forthwith suffocated in the hive before they could make any more honey, otherwise the entire contents of the hive would become demoniacally tainted and thus rendered unfit for use as food; it was declared to be unclean, and this declaration of impurity implied a liability to diabolical possession on the part of those who, like Achan, “transgressed in the thing accursed.” It was the same horror of aiding and abetting demons and enabling them to extend their power over mankind that caused a cock, which was suspected of having laid the so-called “basilisk-egg,” or a hen, addicted to the ominous habit of crowing, to be summarily put to death, since it was only by such expiation that the evil could be averted.

A Swiss jurist, Eduard Osenbrüggen (_Studien zur deutschen und schweizerischen Rechtsgeschichte._ Schaffhausen, 1868, p. 139-149), endeavours to explain these judicial proceedings on the theory of the personification of animals. As only a human being can commit crime and thus render himself liable to punishment, he concludes that it is only by an act of personification that the brute can be placed in the same category as man and become subject to the same penalties. In support of this view he refers to the fact that in ancient and mediæval times domestic animals were regarded as members of the household and entitled to the same legal protection as human vassals. In the Frankish capitularies all beasts of burden or so-called juments were included in the king’s ban and enjoyed the peace guaranteed by royal authority: _Ut jumenta pacem habent similiter per bannum regis_. The weregild extended to them as it did to women and serfs under cover of the man as master of the house and lord of the manor. The beste covert, to use the old legal phraseology, was thus invested with human rights and inferentially endowed with human responsibilities. According to old Welsh law atonement was made for killing a cat or dog belonging to another person by suspending the animal by the tail so that its nozzle touched the ground, and then pouring wheat over it until its body was entirely covered. Old Germanic law also recognized the competency of these animals as witnesses in certain cases, as, for example, when burglary had been committed by night, in the absence of human testimony, the householder was permitted to appear before the court and make complaint, carrying on his arm a dog, cat or cock, and holding in his hand three straws taken from the roof as symbols of the house. Symbolism and personification, as applied to animals and inanimate objects, unquestionably played an important part in primitive legislation, but this principle does not account for the excommunication and anathematization of noxious vermin or for the criminal prosecution and capital punishment of homicidal beasts, nor does it throw the faintest light upon the origin and purpose of such proceedings. Osenbrüggen’s statement that the cock condemned to be burned at Bâle was personified as a heretic (Ketzer) and therefore sentenced to the stake, is a far-fetched and wholly fanciful explanation. As we have already seen, the unfortunate fowl, suspected of laying an egg in violation of its nature, was feared as an abnormal, inauspicious, and therefore diabolic creature; the fatal cockatrice, which was supposed to issue from this egg when hatched, and the use which might be made of its contents for promoting intercourse with evil spirits, caused such a cock to be dreaded as a dangerous purveyor to His Satanic Majesty, but no member of the Kohlenberg Court ever thought of consigning Chanticleer to the flames as the peer of Wycliffe or of Huss in heresy.

The judicial prosecution of animals, resulting in their excommunication by the Church or their execution by the hangman, had its origin in the common superstition of the age, which has left such a tragical record of itself in the incredibly absurd and atrocious annals of witchcraft. The same ancient code that condemned a homicidal ox to be stoned, declared that a witch should not be suffered to live, and although the Jewish lawgiver may have regarded the former enactment chiefly as a police regulation designed to protect persons against unruly cattle, it was, like the decree of death against witches, genetically connected with the Hebrew cult and had therefore an essentially religious character. It was these two paragraphs of the Mosaic law that Christian tribunals in the Middle Ages were wont to adduce as their authority for prosecuting and punishing both classes of delinquents, although in the application of them they were undoubtedly incited by motives and influenced by fears wholly foreign to the mind of the Levitical legislator. The extension of Christianity beyond the boundaries of Judaism and the conversion of Gentile nations led to its gradual but radical transformation. The propagation of the new and aggressive faith among the Greeks and Romans, and especially among the Indo-Germanic tribes of Northern Europe, necessarily deposed, degraded and demonized the ancestral deities of the proselytes, who were taught henceforth to abjure the gods of their fathers and to denounce them as devils. Thus missionary zeal and success, while saving human souls from endless perdition, served also to enlarge the realm of the Prince of Darkness and to increase the number of his subjects and satellites. The new convert saw them with his mind’s eye skulking about in obscure places, haunting forest dells and mountain streams by day, approaching human habitations by night and waiting for opportunities to lure him back to the old worship or to take vengeance upon him for his recreancy. Every untoward event furnished an occasion for their intervention, which could be averted or repelled only by the benedictions, exorcisms or anathemas of the Church. The ecclesiastical authorities were therefore directly interested in encouraging this superstitious belief as one of the chief sources of their power, and it was for this reason that diabolical agencies were assumed to be at work in every maleficent force of nature and to be incarnate in every noxious creature. That this doctrine is still held and this policy still pursued by the bishops and other clergy of the Roman Catholic Church, no one familiar with the literature of the subject can deny.

Besides the manuals and rituals already cited, consult, for example, _Die deutschen Bischöfe und der Aberglaube_: Eine Denkschrift von Dr. Fr. Heinrich Reusch, Professor of Theology in the University of Bonn, who vigorously protests against the countenance given by the bishops to the crassest superstitions. For specimens of the literature condemned by the German professor, but approved by the prelates and the pope, see such periodicals as _Monat-Rosen zu Ehren der Unbefleckten Gottes-Mutter Maria and Der Sendbote des göttlichen Herzens Jesu_, published by Jesuits at Innsbruck in the Tyrol.

It is a curious fact that the most recent and most radical theories of juridical punishment, based upon anthropological, sociological and psychiatrical investigations, would seem to obscure and even to obliterate the line of distinction between man and beast, so far as their capacity for committing crime and their moral responsibility for their misdeeds are concerned. According to Lombroso there are _i delinquenti nati fra gli animali_, beasts which are born criminals and wilfully and wantonly injure others of their kind, violating with perversity and premeditation the laws of the society in which they live. Thus the modern criminologist recognizes the existence of the kind of malefactor characterized by Jocodus Damhouder, a Belgian jurist of the sixteenth century, as _bestia laedens ex interna malitia_; but although he might admit that the beast perpetrated the deed with malice aforethought and with the clear consciousness of wrong-doing, he would never think of bringing such a creature to trial or of applying to it the principle of retributive justice. This example illustrates the radical change which the theory of punishment has undergone in recent times and the far-reaching influence which it is beginning to exert upon penal legislation. In the second part of the present work the writer calls attention to this important revolution in the province of criminology, discussing as concisely as possible its essential features and indicating its general scope and practical tendencies, so far as they have been determined. It must be remembered, however, that, although the savage spirit of revenge, that eagerly demands blood for blood without the slightest consideration of the anatomical, physiological or psychological conditions upon which the commission of the specific act depends, has ceased to be the controlling factor in the enactment and execution of penal codes, the new system of jurisprudence, based upon more enlightened conceptions of human responsibility, is still in an inchoate state and very far from having worked out a satisfactory solution of the intricate problem of the origin and nature of crime and its proper penalty.

In 1386, an infanticidal sow was executed in the old Norman city of Falaise, and the scene was represented in fresco on the west wall of the Church of the Holy Trinity in that city. This curious painting no longer exists, and, so far as can be ascertained, has never been engraved. It has been frequently and quite fully described by different writers, and the frontispiece of the present volume is not a reproduction of the original picture, but a reconstruction of it according to these descriptions. It is taken from Arthur Mangin’s _L’Homme et la Bête_ (Paris, 1872), of which all the illustrations are more or less fancy sketches. A full account of the trial and execution is given in the present volume.

The iconographic edition of Jocodus Damhouder’s _Praxis Rerum Criminalium_ (Antverpiæ, 1562) contains at the beginning of each section an engraving representing the perpetration of the crimes about to be discussed. That at the head of the chapter entitled “De Damno Pecuario” is a lively picture of the injuries done by animals and rendering them liable to criminal process; it is reproduced facing page 161 of the present work.

The most important documents, from which our knowledge of these judicial proceedings is derived, are given in the Appendix, together with a complete list of prosecutions and excommunications during the past ten centuries, so far as we have been able to discover any record of them.

The bibliography, although making no claim to be exhaustive, comprises the principal works on the subject. Articles and essays, which are merely a rehash of other publications, it has not been deemed necessary to mention. Such, for example, are “Criminalprocesse gegen Thiere,” in _Miscellen aus der neuesten ausländischen Literatur_ (Jena, 1830, LXV. pp. 152-55), Jörgensen’s _Nogle Frugter af mit Otium_ (Kopenhagen, 1834, pp. 216-23); Cretella’s “Gli Animali sotto Processo,” in _Fanfulla della Domenica_ (Florence, 1891, No. 65), all three based upon the archival researches of Berriat-Saint-Prix and Ménabréa, and Soldan’s “La Personification des Animaux in Helvetia,” in _Monatsschrift der Studentenverbindung Helvetia_ (VII. pp. 4-17), which is a mere restatement of Osenbrüggen’s theory.

In conclusion the author desires to express his sincere thanks to Dr. Laubmann, Director of the Munich Hof- und Staatsbibliothek, as well as to the other custodians of that library, for their uniform kindness and courtesy in placing at his disposal the printed and manuscript treasures committed to their keeping.