The Criminal Prosecution and Capital Punishment of Animals. Evans Edward Payson

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СКАЧАТЬ which fell on the 11th of August, and again by common consent till the 20th of the same month.

      At this time, Charles Emanuel I., Duke of Savoy, was preparing to invade the Marquisate of Saluzzo, and the confusion caused by the expedition of troops over Mt. Cenis interfered with the progress of the trial, which was postponed till the 27th of August, and again, since the passage of armed men was still going on (actento transitu armigerorum), till the 3rd of September, when Antoine Filliol declared that he could not accept for his clients the offer made by the plaintiffs, because the place was sterile and neither sufficiently nor suitably supplied with food for the support of the said animals; he demanded, therefore, that the proposal be rejected and the action dismissed with costs to the complainants (petit agentes repelli cum expensis). The “egregious Petremand Bertrand,” in behalf of the plaintiffs, denies the correctness of this statement and avers that the spot selected and set apart as an abode for the insects is admirably adapted to this purpose, being full of trees and shrubs of divers kinds, as stated in the conveyance prepared by his clients, all of which he is ready to verify. He insists, therefore, upon an adjudication in his favour. The official took the papers of both parties and reserved his decision, appointing experts, who should in the meantime examine the place, which the plaintiffs had proffered as an asylum for the insects, and submit a written report upon the fitness of the same.

      The final decision of the case, after such careful deliberation and so long delay, is rendered doubtful by the unfortunate circumstance that the last page of the records has been destroyed by rats or bugs of some sort. Perhaps the prosecuted weevils, not being satisfied with the results of the trial, sent a sharp-toothed delegation into the archives to obliterate and annul the judgment of the court. At least nothing should be thought incredible or impossible in the conduct of creatures, which were deemed worthy of being summoned before ecclesiastical tribunals and which succeeded as criminals in claiming the attention and calling forth the legal learning and acumen of the greatest jurists of their day.

      In the margin of the last page are some interesting items of expenses incurred: “pro visitatione III flor.,” by which we are to understand three florins to the experts, who were appointed to visit the place assigned to the insects; then “solverunt scindici Sancti Julliani incluso processu Animalium sigillo ordinationum et pro copia que competat in processu dictorum Animalium omnibus inclusis XVI flor.,” which may be summed up as sixteen florins for clerical work including seals; finally, “item pro sportulis domini vicarii III flor.,” three florins to the vicar, who acted as the bishop’s official and did not receive a regular fee, but was not permitted to go away empty-handed. The date, which follows, Dec. 20, 1587, may be assumed to indicate the time at which the trial came to an end, after a pendency of more than eight months. (Vide Appendix A.)

      In the legal proceedings just described, two points are presented with great clearness and seem to be accepted as incontestable: first, the right of the insects to adequate means of subsistence suited to their nature. This right was recognized by both parties; even the prosecution did not deny it, but only maintained that they must not trespass cultivated fields and destroy the fruits of man’s labour. The complainants were perfectly willing to assign to the weevils an uncultivated tract of ground, where they could feed upon such natural products of the soil as were not due to human toil and tillage. Secondly, no one appears to have doubted for a moment that the Church could, by virtue of its anathema, compel these creatures to stop their ravages and cause them to go from one place to another. Indeed, a firm faith in the existence of this power was the pivot on which the whole procedure turned, and without it, the trial would have been a dismal farce in the eyes of all who took part in it.

      It is related in the chronicles of an ancient abbey (Le Père Rochex: Gloire de l’Abbaye et Vallée de la Novalaise), that St. Eldrad commanded the snakes, which infested the environs of a priory in the valley of Briançon, to depart, and, taking a staff in his hand, conducted them to a desert place and shut them up in a cave, where they all miserably perished. Perhaps the serpent, which suffered Satan to take possession of its seductive form and thus played such a fatal part in effecting the fall of man and in introducing sin into the world, may have been regarded as completely out of the pale and protection of law, and as having no rights which an ecclesiastical excommunicator or a wonder-working saint would be bound to respect. As a rule, however, such an arbitrary abuse of miraculous power to the injury or destruction of God’s creatures was considered illegal and unjustifiable, although irascible anchorites and other holy men under strong provocation often gave way to it. Mediæval jurists frowned upon summary measures of this sort, just as modern lawyers condemn the practice of lynch-law as mobbish and essentially seditious, and only to be excused as a sudden outburst of public indignation at some exceptionally brutal outrage.

      Properly speaking, animals cannot be excommunicated, but only anathematized; just as women, according to old English law, having no legal status of their own and not being bound in frankpledge as members of the decennary or tithable community, could not be outlawed, but only “waived” or abandoned. This form of ban, while differing theoretically from actual outlawry, was practically the same in its effects upon the individual subjected to it. Excommunication is, as the etymology of the word implies, the exclusion from the communion of the Church and from whatever spiritual or temporal advantages may accrue to a person from this relation. It is one of the consequences of an anathema, but is limited in its operation to members of the ecclesiastical body, to which the lower animals do not belong. This was the generally accepted view, and is the opinion maintained by Gaspard Bailly, advocate and councillor of the Sovereign Senate of Savoy, in his Traité des Monitoires, avec un Plaidoyer contre les Insects, printed at Lyons in 1668, but it has not always been held by writers on this subject, some of whom do not recognize this distinction between anathema and excommunication on the authority of many passages of Holy Writ, affirming that, as the whole creation was corrupted by the fall, so the atonement extends to all living creatures, which are represented as longing for the day of their redemption and regeneration.

      One of the strong points made by the counsel for the defence in prosecutions of this kind was that these insects were sent to punish man for his sins, and should therefore be regarded as agents and emissaries of the Almighty, and that to attempt to destroy them or to drive them away would be to fight against God (s’en prendre à Dieu). Under such circumstances, the proper thing to do would be, not to seek legal redress and to treat the noxious creatures as criminals, but to repent and humbly to entreat an angry Deity to remove the scourge. This is still the standpoint of Christian orthodoxy, Protestant as well as Catholic, and the argument applies with equal force to the impious and atheistic substitution of Paris green and the chlorate of lime for prayer and fasting as exterminators of potato-bugs. The modern, like the mediæval horticulturist may ward off devouring vermin from his garden by the use of ashes, but he strews them on his plants instead of sprinkling them on his own head, and thus indicates to what extent scientific have superseded theological methods in the practical affairs of life.

      Thomas Aquinas, the “angelic doctor,” in his Summa Theologiæ raises the query, whether it is permissible to curse irrational creatures (utrum liceat irrationabiles creaturas adjurare). He states, in the first place, that curses and blessings can be pronounced only upon such things as are susceptible of receiving evil or good impressions from them, or in other words, upon sentient and rational beings, or upon irrational creatures and insentient things in their relation to rational beings, so that the latter are the objects ultimately aimed at and favourably or unfavourably affected. Thus God cursed the earth, because it is essential to a man’s subsistence; Jesus cursed the barren fig-tree symbolizing the Jews, who made a great show of leafage in the form of rites and ceremonies, but bore no fruits of righteousness; Job cursed the day on which he was born, because he took from his mother’s womb the taint of original sin; David cursed the rocks and mountains of Gilboa, because they were stained with the blood of “the beauty of Israel”; in like manner the Lord sends locusts and blight and mildew to destroy the harvests, because these are intimately connected with the happiness of mankind, whose sins he wishes to punish.

      It is laid down as a legal СКАЧАТЬ