CHAPTER X

AGENTS UNDER INTELLECTUAL DISABILITY

WE hold an agent responsible not only for his intention, but for any known concomitant of his act, as also for any such unknown concomitant of it as we attribute to want of due attention. But for anything which he could not be aware of he is not responsible. Hence certain classes of agents--animals, children, idiots, madmen--are totally or partially exempted from moral blame and legal punishment.

Though animals are undoubtedly capable of acting, we do not regard them as proper objects of moral indignation. The reason for this is not merely the very limited scope of their volitions and their inability to foresee consequences of their acts, since these considerations could only restrict their responsibility within correspondingly narrow limits. Their total irresponsibility rests on the presumption that they are incapable of recognising any act of theirs as right or wrong. If the concomitant of an act is imputable to the agent only in so far as he could know it, it is obvious that no act is wrong which the agent could not know to be wrong.

It is a familiar fact that, by discipline, we may teach domesticated animals to live up to a certain standard of behaviour, but this by no means implies that we awake in them moral feelings. When some writers credit dogs and apes with a conscience,[1] we must remember that an {250} observer's inference is not the same as an observed fact.[2] It seems that the so-called conscience in animals is nothing more than an association in the animal's mind between the performance of a given act and the occurrence of certain consequences, together with a fear of those consequences.[3]

[Footnote 1: Romanes, _Mental Evolution in Animals_, p. 352. Perty, _Seelenleben der Thiere_, p. 67. Brehm, _From North Pole to Equator_, p. 298.]

[Footnote 2: _Cf._ Lloyd Morgan, _Animal Life and Intelligence_, p. 399.]

[Footnote 3: _Cf._ _ibid._ p. 405.]

The following is one of the most striking instances of what Professor Romanes regards as "conscience" in animals; it refers to a terrier which had never, even in its puppyhood, been known to steal, but on the contrary used to make an excellent guard to protect property from other animals, servants, and so forth, even though these were his best friends. "Nevertheless," says Professor Romanes, "on one occasion he was very hungry, and in the room where I was reading and he was sitting, there was, within easy reach, a savoury mutton chop. I was greatly surprised to see him stealthily remove this chop and take it under a sofa. However, I pretended not to observe what had occurred, and waited to see what would happen next. For fully a quarter of an hour this terrier remained under the sofa without making a sound, but doubtless enduring an agony of contending feelings. Eventually, however, conscience came off victorious, for emerging from his place of concealment and carrying in his mouth the stolen chop, he came across the room and laid the tempting morsel at my feet. The moment he dropped the stolen property he bolted again under the sofa, and from this retreat no coaxing could charm him for several hours afterwards. Moreover, when during that time he was spoken to or patted, he always turned away his head in a ludicrously conscience-stricken manner. Altogether I do not think it would be possible to imagine a more satisfactory exhibition of conscience by an animal than this; for . . . the particular animal in question was never beaten in its life." The author then adds in a note that "mere dread of punishment cannot even be suspected to have been the motive principle of action."[4] It may be so, if by punishment be understood the infliction of physical pain. But it can hardly be doubted that the terrier suspected his master to be displeased with his behaviour, and the dread of displeasure or reproof may certainly have been the sole reason for his bringing back the stolen food. Among {251} "high-life" dogs, as Professor Romanes himself observes, "wounded sensibilities and loss of esteem are capable of producing much keener suffering than is mere physical pain."[5] But fear of the anticipated consequences of an act, even when mixed with shame, is not the same as the moral feeling of remorse. There is no indication that the terrier felt that his act was wrong, in the strict sense of the word.

[Footnote 4: Romanes, 'Conscience in Animals,' in _Quarterly Journal of Science_, xiii. 156 _sq._]

[Footnote 5: _Idem_, _Animal Intelligence_, p. 439.]

However, though most of us, on due reflection, would deny that animals are proper objects of moral censure, there is a general tendency to deal with them as if they were. The dog or the horse that obstinately refuses to submit to its master's will arouses a feeling of resentment which almost claims to be righteous; and the shock given to public feeling by some atrocious deed committed by a beast calls for retribution. As Adam Smith observes, "the dog that bites, the ox that gores, are both of them punished. If they have been the causes of the death of any person, neither the public, nor the relations of the slain, can be satisfied, unless they are put to death in their turn: nor is this merely for the security of the living, but, in some measure, to revenge the injury of the dead."[6]

[Footnote 6: Adam Smith, _Theory of Moral Sentiments_, p. 137.]

If thus our own resentment towards an animal which has caused some injury, when not duly tempered by reason, often comes near actual indignation, it is not surprising to find that, at the lower stages of human civilisation, animals are deliberately treated as responsible agents. The American Indian who eats the vermin which molest him defends his action by arguing that, as the animal has first bitten him, he is only retaliating the injury on the injurer.[7] The custom of blood-revenge is often extended to the animal world. The Kukis, says Mr. Macrae, "are of a most vindictive disposition; blood must always be shed for blood; if a tiger kills {252} any of them, near a _Parah_ [or village], the whole tribe is up in arms, and goes in pursuit of the animal; when if he is killed, the family of the deceased gives a feast of his flesh, in revenge of his having killed their relation. And should the tribe fail to destroy the tiger, in this first general pursuit of him, the family of the deceased must still continue the chase; for until they have killed either this, or some other tiger, and have given a feast of his flesh, they are in disgrace in the _Parah_, and not associated with by the rest of the inhabitants. In like manner, if a tiger destroys one of a hunting party, or of a party of warriors, on an hostile excursion, neither the one nor the other (whatever their success may have been) can return to the _Parah_, without being disgraced, unless they kill the tiger."[8] Of the Sea Dyaks we are told that they will not willingly take part in capturing an alligator, unless the alligator has first destroyed one of themselves; "for why, say they, should they commit an act of aggression, when he and his kindred can so easily repay them? But should the alligator take a human life, revenge becomes a sacred duty of the living relatives, who will trap the man-eater in the spirit of an officer of justice pursuing a criminal. . . . The man-eating alligator is supposed to be pursued by a righteous Nemesis; and whenever one is caught, they have a profound conviction that it must be the guilty one, or his accomplice, for no innocent leviathan could be permitted by the fates to be caught by man."[9] So, also, the Malagasy will never kill a crocodile, except in retaliation for one of their friends or neighbours who has been destroyed by a crocodile. "They believe that the wanton destruction of one of these reptiles will be followed by the loss of human life, in accordance with the principle of _lex talionis_. The inhabitants living in the neighbourhood of the lake Itàsy, to the west of the central province, are accustomed to make a yearly proclamation {253} to the crocodiles, warning them that they shall revenge the death of some of their friends by killing as many _voày_ in return, and warning the well-disposed crocodiles to keep out of the way, as they have no quarrel with them, but only with their evil-minded relatives who have taken human life."[10]

[Footnote 7: Harmon, _Journal of Voyages and Travels in the Interior of North America_, p. 327. Southey, _History of Brazil_, i. 223. _Cf._ Bastian, _Der Mensch in der Geschichte_, iii. 25.]

[Footnote 8: Macrae, 'Account of the Kookies,' in _Asiatick Researches_, vii. 189.]

[Footnote 9: Perham, 'Sea Dyak Religion,' in _Journal of the Straits Branch of the Royal Asiatic Society_, No. 10, p. 221 _sq._ _Cf._ Frazer, _Golden Bough_, ii. 390.]

[Footnote 10: Sibree, _The Great African Island_, p. 269.]

Animals are not only exposed to the blood-feud, but are often exposed to regular punishment. This is the case among the Mambettu in Central Africa. Casati mentions the following instance:--"A goat was chased and persecuted by a dog, and in the fight for self-defence the latter received a thrust from the goat's horn. The poor dog, which was the valuable property of a powerful man, died shortly after. This serious matter was much discussed and commented upon, and finally referred to the king for judgment. The poor goat was sentenced to be slaughtered before its victim's corpse, its flesh was served to the Mambettu [that is, people of the superior race], and that of the dog to the Mege [that is, people of the conquered race]."[11] Among the Maori, according to Polack, the crime of impiety is not confined to man only, but even a pig straying over a sacred place incurs the punishment of death.[12] In Muhammedan East Africa, some time ago, a dog was publicly scourged for having entered a mosque.[13] The Bogos kill a bull or cow which causes the death of a man.[14] According to the native code of Malacca, if a buffalo or a head of cattle "be tied in the forest, in a place where people are not in the habit of passing, and there gore anybody to death, it shall be put to death"; but the owner of the animal shall not be held liable.[15] According to Hebrew law, "if an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten"; and, in the case of sexual intercourse {254} between a man, or woman, and a beast, not only the human offender, but the beast, is to be put to death.[16] It is prescribed in the Vendîdâd that, if a mad dog which bites without barking, smite a sheep or wound a man, "the dog shall pay for the wound of the wounded as for wilful murder."[17] Plato had undoubtedly borrowed from Attic custom or law the idea which underlies the following regulation in his 'Laws':--"If a beast of burden or other animal cause the death of any one, except in the case of anything of that kind happening to a competitor in the public contests, the kinsman of the deceased shall prosecute the slayer for murder, and the wardens of the country, such, and so many as the kinsman appoint, shall try the cause, and let the beast when condemned be slain by them, and let them cast it beyond the borders."[18] In various European countries animals have been judicially sentenced to death, and publicly executed, in retribution for injuries inflicted by them. Advocates were assigned to defend the accused animals, and the whole proceedings, trial, sentence, and execution, were conducted with all the strictest formalities of justice.[19] These proceedings seem to have been particularly common from the end of the thirteenth till the seventeenth century; the last case in France occurred as late as 1845.[20] Not only domestic animals, but even wild ones, were thus put on trial.[21] "In 1565 the Arlesians asked for the expulsion of the grasshoppers. The case came before the Tribunal de l'Officialité, and Maître Marin was assigned to the insects as counsel. He defended his clients with much zeal. Since the accused had been created, he argued that they were justified in eating what was necessary to them. The opposite counsel cited the serpent in the Garden of Eden, and sundry other animals {255} mentioned in Scripture, as having incurred severe penalties. The grasshoppers got the worst of it, and were ordered to quit the territory, with a threat of anathematisation from the altar, to be repeated till the last of them had obeyed the sentence of the honourable court."[22] From an earlier period we have records of maledictions and excommunications of vermin and obnoxious insects. In 1120, a bishop of Laon is reported to have excommunicated the caterpillars which were ravaging his diocese, with the same formula as that employed the previous year by the Council of Rheims in cursing the priests who persisted in marrying in spite of the canons.[23] Such maledictions and excommunications, however, were probably regarded rather as magical means of expulsion than as punishments.[24] Not long ago, when swarms of locusts ravaged the gardens of Tangier, the Shereef of Wazzan expelled the injurious animals by spitting into the mouth of one of them.

[Footnote 11: Casati, _Ten Years in Equatoria_, i. 176.]

[Footnote 12: Polack, _Manners and Customs of the New Zealanders_, i. 240.]

[Footnote 13: von Amira, _Thierstrafen und Thierprocesse_, p. 30.]

[Footnote 14: Munzinger, _Die Sitten und das Recht der Bogos_, p. 83.]

[Footnote 15: Newbold, _British Settlements in the Straits of Malacca_, ii. 257.]

[Footnote 16: _Exodus_, xxi. 28 _sq._ _Leviticus_, xx. 15 _sq._]

[Footnote 17: _ Vendîdâd_, xiii. 31. _Cf._ _ibid._ xiii. 32 _sqq._; _Yasts_, xxiv. 44.]

[Footnote 18: Plato, _Leges_, ix. 873.]

[Footnote 19: Chambers, _Book of Days_, i. 127. Pertile, 'Gli animali in giudizio,' in _Atti del R. Instituto Veneto_, ser. vi. vol. iv. 139. ]

[Footnote 20: von Amira, _Thierstrafen_, pp. 2, 15, 16, 28 _sq._ In England such proceedings seem to have hardly occurred at all (_ibid._ p. 15), but, as we shall see, an animal which caused the death of a man was forfeited as deodand.]

[Footnote 21: See Chambers, _op. cit._ i. 127 _sq._]

[Footnote 22: Marlinengo-Cesaresco, _Essays in the Study of Folk-Songs_, p. 183 _sq._]

[Footnote 23: Desmaze, _Les pénalités anciennes_, p. 31 _sq._]

[Footnote 24: This is the opinion of von Amira, who, however--as it seems to me, without sufficient evidence--suggests that the maledictions did not refer to ordinary animals, but to human souls or devils in disguise (_Thierstrafen_, p. 16 _sqq._).]

It has been suggested that the mediæval practice of punishing animals after human fashion was derived from the Mosaic law.[25] But this hypothesis does not account for the comparatively late appearance of the practice, nor for the fact that, in some cases, other punishments short of death were inflicted upon offending beasts.[26] It seems much more probable that the procedure in question developed out of an ancient European custom, to which it stood in the relationship of punishment to revenge.[27] According to the customs or laws of various so-called Aryan peoples--Greeks,[28] Romans,[29] Teutons,[30] Celts,[31] Slavs,[32]--an {256} animal which did some serious damage, especially if it caused the death of a man, was to be given up to the injured party, or his family, obviously in order that it might be retaliated upon.[33] According to the Welsh Laws, "that is the only case in which the murderer is to be given up for his deed."[34] The fact that afterwards, in the later Middle Ages, this form of reprisal was in certain instances transformed into regular punishment, only implies that the principle according to which punishment succeeded vengeance in the case of human crimes was, by way of analogy, extended to injuries committed by animals.

[Footnote 25: _Ibid._ pp. 4, 47 _sqq._]

[Footnote 26: Pertile, _loc. cit._ p. 148.]

[Footnote 27: _Cf._ Brunner, _Forschungen zur Geschichte des deutschen und französischen Rechtes_, p. 517 _sqq._]

[Footnote 28: Plutarch, _Vita Solonis_, 24. Xenophon, _Historiæ Græcæ_, ii. 4. 41.]

[Footnote 29: _Institutiones_, iv. 9. _Digesta_, ix. 1.]

[Footnote 30: _Lex Salica_ (cod. i.), 36. _Lex Ripuariorum_, 46. Grimm, _Deutsche Rechtsalterthümer_, p. 664 _sqq._ Brunner, _Forschungen_, p. 513 _sqq._]

[Footnote 31: _Ancient Laws of Ireland_, i. 161; iv. 177, 179, 181. _Welsh Laws_, iv. i. 17 (_Ancient Laws and Institutes of Wales_, p. 391).]

[Footnote 32: Macieiowski, _Slavische Rechtsgeschichte_, iv. 333.]

[Footnote 33: See _Lex Wisigothorum_, viii. 4. 20; _Schwabenspiegel_, Landrechtbuch, 204; Dirksen, _Civilistische Abhandlungen_, i. 104; von Jhering, _Geist des römischen Rechts_, i. 123; Hepp, _Die Zurechnung auf dem Gebiete des Civilrechts_, p. 103; Grimm, _Deutsche Rechtsalterthümer_, p. 664; Brunner, _Deutsche Rechtsgeschichte_, ii. 556; _Idem_, _Forschungen_, p. 513.]

[Footnote 34: _Welsh Laws_, iv. 1. 17 (_Ancient Laws and Institutes of Wales_, p. 391).]

There has been considerable diversity of opinion concerning the purpose of inflicting punishments upon animals. Some writers suggest that it was possibly done with a view to deterring other animals from committing similar injuries.[35] According to others, the animal was executed in order that the hateful act should be forgotten; Gratian, referring to St. Augustine,[36] says, "Non propter culpam, sed propter memoriam facti pecus occiditur, ad quod mulier accesserit."[37] A theory which has gained much adherence explains the punishment as a symbolic act, performed for the purpose of inspiring horror of the crime into the minds of men.[38] M. Thonissen maintains that, at Athens, "on frappait l'animal auteur d'un homicide, afin que le peuple, en voyant périr un être privé de raison, conçut une grande horreur pour l'effusion du sang humain."[39] It has also been supposed that the animal was punished with intention to intimidate those {257} who were responsible for its acts,[40] or that it was killed because it was dangerous.[41] But the true solution of the problem seems simple enough. The animal had to suffer on account of the indignation it aroused. It was regarded as responsible for its deed.[42] In early records the punishment is frequently spoken of as an act of "justice";[43] and the protests of Beaumanoir and others against this opinion[44] only show that it was held in good earnest, if not by all, at least by many. From certain details we can also see how closely the responsibility ascribed to animals resembled the responsibility of men. In some of the texts of the Salic law the animal is spoken of as "auctor criminis."[45] In an ancient Irish law-tract it is said that, when a bee has blinded a person's eye, the whole hive "shall pay the fine," and "the many become accountable for the crime of one, although they all have not attacked."[46] Youth was a ground for acquittal, as appears from a case which occurred at Lavegny in 1457, when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child: whilst the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother.[47] In Burgundy, a distinction was made between a mischievous dog that entered a room through an open door and one that committed a burglary; the latter was a _larron_, and was to be punished as such.[48] The repetition of a crime aggravated the punishment;[49] {258} and the animal "principal" was punished more severely than the "accessories.[50]

[Footnote 35: Leibniz, _Essais de Theodicée_, p. 182 _sq._ Lessona, quoted by d'Addosio, _Bestie delinquenti_, p. 145.]

[Footnote 36: St. Augustine, _Quæstiones in Leviticum_, 74 (_ad Lev._