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.
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 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 opinion44 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 and the animal “principal” was punished more severely than the “accessories.50
35 Leibniz, Essais de Theodicée, p. 182 sq. Lessona, quoted by d’Addosio, Bestie delinquenti, p. 145.
36 St. 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).
37 Gratian, Decretum, ii. 15. 1. 4. Cf. Mishna, fol. 54, quoted by Rabbinowicz, Législation criminelle du Talmud, p. 116.
38 Ayrault, 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. 19 sq.
39 Thonissen, Le droit pénal de la république Athénienne, p. 414.
40 Du Boys, quoted by d’Addosio, op. cit. p. 139.
41 Lessona, quoted ibid. p. 145.
42 Cf. Post, Die Grundlagen des Rechts, p. 359; Friedrichs, ‘Mensch und Person,’ in Das Ausland, 1891, pp. 300, 315; and, especially, d’Addosio, op. cit. p. 146 sqq.: “Nel medioevo si punì l'animale perchè lo si ritenne in certo modo conscio delle sue azioni, in certo modo libero, in certo modo responsabile.”
43 von Amira. op. cit. p. 9.
44 Beaumanoir, Les coutumes du Beauvoisis, lxix. 6, vol. ii. 485 sq. Chambers, op. cit. i. 127. Lichtenberg, Vermischte Schriften, iv. 481.
45 Lex Salica, edited by Hessels, coll. 209–212, 215.
46 Ancient Laws of Ireland, iv. 179.
47 Chambers, op. cit. i. 128.
48 Ancien Coutumier de Bourgogne, 23 (Revue historique de droit français et étranger, iii. 549): “Il deust hauoir faire justice del larron.”
49 Pertile, loc. cit. p. 148: “La Carta de Logu d’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. 32 sqq.
50 d’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