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 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.
11 Casati, Ten Years in Equatoria, i. 176.
12 Polack, Manners and Customs of the New Zealanders, i. 240.
13 von Amira, Thierstrafen und Thierprocesse, p. 30.
14 Munzinger, Die Sitten und das Recht der Bogos, p. 83.
15 Newbold, British Settlements in the Straits of Malacca, ii. 257.
16 Exodus, xxi. 28 sq. Leviticus, xx. 15 sq.
17 Vendîdâd, xiii. 31. Cf. ibid. xiii. 32 sqq.; Yasts, xxiv. 44.
18 Plato, Leges, ix. 873.
19 Chambers, Book of Days, i. 127. Pertile, ‘Gli animali in giudizio,’ in Atti del R. Instituto Veneto, ser. vi. vol. iv. 139.
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.
21 See Chambers, op. cit. i. 127 sq.
22 Marlinengo-Cesaresco, Essays in the Study of Folk-Songs, p. 183 sq.
23 Desmaze, Les pénalités anciennes, p. 31 sq.
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 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.
25 Ibid. pp. 4, 47 sqq.
26 Pertile, loc. cit. p. 148.
27 Cf. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 517 sqq.
28 Plutarch, Vita Solonis, 24. Xenophon, Historiæ Græcæ, ii. 4. 41.
29 Institutiones, iv. 9. Digesta, ix. 1.
30 Lex Salica (cod. i.), 36. Lex Ripuariorum, 46. Grimm, Deutsche Rechtsalterthümer, p. 664 sqq. Brunner, Forschungen, p. 513 sqq.
31 Ancient Laws of Ireland, i. 161; iv. 177, 179, 181. Welsh Laws, iv. i. 17 (Ancient Laws and Institutes of Wales, p. 391).
32 Macieiowski, Slavische Rechtsgeschichte, iv. 333.