Chapter I: Bugs and Beasts Before the Law (1)

It is said that Bartholomew Chassenée,[1] a distinguished French jurist of the sixteenth century (born at Issy-l’Evêque in 1480), made his reputation at the bar as counsel for some rats, which had been put on trial before the ecclesiastical court of Autun on the charge of having feloniously eaten up and wantonly destroyed the barley-crop of that province. On complaint formally presented by the magistracy, the official or bishop’s vicar, who exercised jurisdiction in such cases, cited the culprits to appear on a certain day and appointed Chassenée to defend them.

In view of the bad repute and notorious guilt of his clients, Chassenée was forced to employ all sorts of legal shifts and chicane, dilatory pleas and other technical objections, hoping thereby to find some loophole in the meshes of the law through which the accused might escape, or at least to defer and mitigate the sentence of the judge. He urged, in the first place, that inasmuch as the defendants were dispersed over a large tract of country and dwelt in numerous villages, a single summons was insufficient to notify them all; he succeeded, therefore, in obtaining a second citation, to be published from the pulpits of all the parishes inhabited by the said rats. At the expiration of the considerable time which elapsed before this order could be carried into effect and the proclamation be duly made, he excused the default or non-appearance of his clients on the ground of the length and difficulty of the journey and the serious perils which attended it, owing to the unwearied vigilance of their mortal enemies, the cats, who watched all their movements, and, with fell intent, lay in wait for them at every corner and passage. On this point Chassenée addressed the court at some length, in order to show that if a person be cited to appear at a place, to which he cannot come with safety, he may exercise the right of appeal and refuse to obey the writ, even though such appeal be expressly precluded in the summons. The point was argued as seriously as though it were a question of family feud between Capulet and Montague in Verona or Colonna and Orsini in Rome.

At a later period of his life Chassenée was reminded of the legal principle thus laid down and urged to apply it in favour of clients more worthy of its protection than a horde of vagrant rodents. In 1540 he was president of the judicial assembly known as the Parliament of Provence on a memorable occasion when the iniquitous measure for the extirpation of heresy by exterminating the Waldenses in the villages of Cabrières and Merindol was under discussion. One of the members of the tribunal, a gentleman from Arles, Renaud d’Alleins, ventured to suggest to the presiding officer that it would be extremely unjust to condemn these unfortunate heretics without granting them a hearing and permitting an advocate to speak in their defence, so that they might be surrounded by all the safeguards of justice, adding that the eminent jurist had formerly insisted upon this right before the court of Autun and maintained that even animals should not be adjudged and sentenced without having a proper person appointed to plead their cause. Chassenée thereupon obtained a decree from the king commanding that the accused Waldenses should be heard; but his death, which occurred very soon afterwards, changed the state of affairs and prevented whatever good effects might have been produced by this simple act of justice. [Cf. Desnoyers: _Recherches_, etc. (_vide_ Bibliography), p. 18.]

In the report of the trial published in the _Thémis Jurisconsulte_ for 1820 (Tome I. pp. 194 sqq.) by Berriat Saint-Prix, on the authority of the celebrated Jacques Auguste De Thou, President of the Parliament of Paris, the sentence pronounced by the official is not recorded. But whatever the judicial decision may have been, the ingenuity and acumen with which Chassenée conducted the defence, the legal learning which he brought to bear upon the case, and the eloquence of his plea enlisted the public interest and established his fame as a criminal lawyer and forensic orator.

Chassenée is said to have been employed in several cases of this kind, but no records of them seem to have been preserved, although it is possible that they may lie buried in the dusty archives of some obscure provincial town in France, once the seat of an ecclesiastical tribunal. The whole subject, however, has been treated by him exhaustively in a book entitled _Consilium primum, quod tractatus jure dici potest, propter multiplicem et reconditam doctrinam, ubi luculenter et accurate tractatur quaestio illa: De excommunicatione animalium insectorum_. This treatise, which is the first of sixty-nine consilia, embodying opinions on various legal questions touching the holding and transmission of property, entail, loans, contracts, dowries, wills, and kindred topics, and which holds a peculiar place in the history of jurisprudence, was originally published in 1531, and reprinted in 1581, and again in 1588. The edition referred to in the present work is the first reprint of 1581, a copy of which is in the Royal Court and State Library of Munich.

This curious dissertation originated, as it appears, in an application of the inhabitants of Beaune to the ecclesiastical tribunal of Autun for a decree of excommunication against certain noxious insects called huberes or hurebers, probably a kind of locust or harvest-fly. The request was granted, and the pernicious creatures were duly accursed. Chassenée now raises the query whether such a thing may be rightfully and lawfully done (_sed an recte et de jure fieri possit_), and how it should be effected. “The principal question,” he says, “is whether one can by injunction cause such insects to withdraw from a place in which they are doing damage, or to abstain from doing damage there, under penalty of anathema and perpetual malediction. And although in times past there has never been any doubt on this point, yet I have thought that the subject should be thoroughly examined anew, lest I should seem to fall into the vice censured by Cicero (_De Off._ I. 6), of regarding things which we do not know as if they were well understood by us, and therefore rashly giving them our assent.” He divides his treatise into five parts, or rather discusses the subject under five heads: “First, lest I may seem to discourse to the populace, how are these our animals called in the Latin language; secondly, whether these our animals can be summoned; thirdly, whether they can be summoned by procurators, and, if they are cited to appear personally, whether they can appear by proxy, _i.e._ through procurators appointed by the judge who summons them; fourthly, what judge, whether layman or ecclesiastic, is competent to try them, and how he is to proceed against them and to pass and execute sentence upon them; fifthly, what constitutes an anathema and how does it differ from an excommunication.” Chassenée’s method of investigation is not that of the philosophic thinker, who marshals facts under general laws and traces them to rational causes, but combines that of the lawyer, who quotes precedents and examines witnesses, with that of the theologian, who balances authorities and serves us with texts instead of arguments. He scrupulously avoids all psychological speculation or metaphysical reasoning, and simply aims to show that animals have been tried, convicted, and sentenced by civil and ecclesiastical courts, and that the competence of these tribunals has been generally recognized.

The documentary evidence adduced is drawn from a great variety of sources: the scriptures of the Old and New Testament, pagan poets and philosophers, patristic theologians and homilists, mediæval hagiologists, Virgil, Ovid, Pliny, Cicero, Cato, Aristotle, Seneca, Silius Italicus, Boethius, Gregory the Great, Pico della Mirandola, the laws of Moses, the prophecies of Daniel, and the Institutes of Justinian are alike laid under contribution and quoted as of equal authority. All is fish that comes to his net out of his erudition, be it salmon or sea-urchin. If twelve witnesses can be produced in favour of a statement, and only two against it, his reason bows to the will of the majority, and accepts the proposition as proved. It must be added, however, to his credit, that he proceeds in this matter with strict impartiality and perfect rectitude, takes whatever evidence is at hand, and never tries to pack the witness-box.

His knowledge of obscure and now utterly forgotten authors, secular and ecclesiastic, is immense. Like so many scholars of his day he was prodigiously learned, without being remarkable for clearness or originality of thought. Indeed, the vastness of his erudition seems rather to have hampered than helped the vigorous growth of his intellectual faculties. He often indulges in logical subtilties so shallow in their speciousness, that they ought not to deceive the veriest smatterer in dialectics; and the reader is constantly tempted to answer his laboured argumentations, as Tristram Shandy’s Uncle Toby did the lucubrations of Corporal Trim, by “whistling half-a-dozen bars of Lillibullero.” The examples he adduces afford striking illustrations of the gross credulity to which the strongly conservative, precedent-mongering mind of the jurisconsult is apt to fall an easy prey. The habit of seeking knowledge and guidance exclusively in the records and traditions of the past, in the so-called “wisdom of ages,” renders him peculiarly liable to regard every act and utterance of antiquity as necessarily wise and authoritative.

In proof of the power of anathemas, Chassenée refers to the cursing of the serpent in the Garden of Eden, causing it to go upon its belly for all time; David’s malediction of the mountains of Gilboa, so that they had neither rain nor dew; God’s curse upon the city of Jericho, making its strong walls fall before the blasts of trumpets; and in the New Testament the withered fig-tree of Bethany. The words of Jesus, “Every tree that bringeth not forth good fruit is hewn down and cast into the fire,” he interprets, not merely as the best means of getting rid of a cumberer of the orchard, but as a condemnation and punishment of the tree for its delinquencies, and adds: “If, therefore, it is permitted to destroy an irrational thing, because it does not produce fruit, much more is it permitted to curse it, since the greater penalty includes the less” (_cum si liceat quid est plus, debet licere quid est minus_).

An English professor of divinity, Richard Chevenix Trench, justifies the withering of the fruitless fig-tree on the same ground or, at least, by a similar process of reasoning: “It was punished, not for being without fruit, but for proclaiming by the voice of those leaves that it had such; not for being barren, but for being false.” According to this exegesis, it was the telling of a wilful lie that “drew on it the curse.” The guilty fig is thus endowed with a moral character and made clearly conscious of the crime for which it suffered the penalty of death: “Almost as soon as the word of the Lord was spoken, a shuddering fear may have run through all the leaves of the tree, which was thus stricken at the heart.” As regards the culpability and punishableness of the object, the modern divine and the mediæval jurist occupy the same standpoint; only the latter, with a stricter judicial sense, insists that there shall be no infliction of punishment until the malefactor has been convicted by due process of law, and that he shall enjoy all the safeguards which legal forms and technicalities have thrown around him and under whose covert even the vilest criminal has the right to take refuge. The Anglican hermeneutist, on the contrary, would justify the curse and admit the validity of the anathema, although it was only the angry expression of an unreasonable impatience disappointed in not finding fruit at the wrong season, “for the time of figs was not yet.”

A curious and characteristic specimen of the absurd and illogical inferences, which Chassenée is constantly deducing from his texts, is the use he makes of the passage in Virgil’s first Georgic, in which the poet remarks that “no religion has forbidden us to draw off water-courses for irrigating purposes, to enclose crops with fences, or to lay snares for birds,” all these things being essential to successful husbandry. But from the right to snare birds, our jurisprudent infers the right to excommunicate them, since “no snares are stronger than the meshes of an anathema.” Far-fetched deductions and wretched twaddle of this sort fill many pages of the famous lawyer’s dissertation.

Coming down to more recent times, Chassenée mentions several instances of the effectiveness of anathemas, accepting as convincing testimony the ecstacies of saints and the extravagant statements of hagiologists without the slightest expression of doubt as to the truth of these legends. Thus he relates how a priest anathematized an orchard, because its fruits tempted the children of his parish and kept them away from mass. The orchard remained barren until, at the solicitation of the Duchess of Burgundy, the ban was removed. In like manner the Bishop of Lausanne freed Lake Leman from eels, which had become so numerous as seriously to interfere with boating and bathing; on another occasion in the year 1451 the same ecclesiastic expelled from the waters of this lake an immense number of enormous blood-suckers, which threatened to destroy all the large fish and were especially fatal to salmon, the favourite article of food on fast-days. This method of procedure was both cheap and effective and, as Felix Malleolus informs us in his _Tractatus de Exorcismis_ (I), received the approbation of all the learned doctors of the University of Heidelberg: _omnes studii Heydelbergensis Doctores hujusmodi ritus videntes et legentes consenserunt_. By the same agency an abbot changed the sweet white bread of a Count of Toulouse, who abetted and protected heresy, into black, mouldy bread, so that he, who would fain feed souls with corrupt spiritual food, was forced to satisfy his bodily hunger with coarse and unsavoury provender. No sooner was the excommunication removed than the bread resumed its original purity and colour. Egbert, Bishop of Trier, anathematized the swallows, which disturbed the devotions of the faithful by their chirping and chattering, and sacrilegiously defiled his head and vestments with their droppings, when he was officiating at the altar. He forbade them to enter the sacred edifice on pain of death; and it is still a popular superstition at Trier, that if a swallow flies into the cathedral, it immediately falls to the ground and gives up the ghost. Another holy man, known as John the Lamb, cursed the fishes, which had incurred his anger, with results equally fatal to the finny tribe. It is also related of the honey-tongued St. Bernard, that he excommunicated a countless swarm of flies, which annoyed the worshippers and officiating priests in the abbey church of Foigny, and lo, on the morrow they were, like Sennacherib’s host, “all dead corpses.” William, Abbot of St. Theodore in Rheims, who records this miraculous event, states that as soon as the execration was uttered, the flies fell to the floor in such quantities that they had to be thrown out with shovels (_palis ejicientes_). This incident, he adds, was so well known that the cursing of the flies of Foigny became proverbial and formed the subject of a parable. [_Vita S. Bernardi_, auctore Wilhelmo abbate S. Thod. Rhem. I. 11.] According to the usual account, the malediction was not so drastic in its operation and did not cause the flies to disappear until the next day. The rationalist, whose chill and blighting breath is ever nipping the tender buds of faith, would doubtless suggest that a sharp and sudden frost may have added to the force and efficacy of the excommunication. The saint resorted to this severe and summary measure, says the monkish chronicler, because the case was urgent and “no other remedy was at hand.” Perhaps this lack of other means of relief may refer to the absence of “deacons with fly-flaps,” who, according to a contemporary writer, were appointed “to drive away the flies when the Pope celebrateth.”

The island Reichenau in Lake Constance, which derives its name from its fertility and is especially famous for the products of its vineyards and its orchards, was once so infested by venomous reptiles as to be uninhabitable by human beings. Early in the eighth century, as the legend goes, it was visited by St. Pirminius, and no sooner had he set foot upon it than these creatures all crawled and wriggled into the water, so that the surface of the lake was covered for three days and three nights with serpents, scorpions and hideous worms. Peculiar vermifugal efficacy was ascribed to the crosier of St. Magnus, the apostle of Algau, which was preserved in the cloister of St. Mang at Füssen in Bavaria, and from 1685 to 1770 was repeatedly borne in solemn procession to Lucerne, Zug, Schwyz and other portions of Switzerland for the expulsion and extermination of rats, mice, cockchafers and other insects. Sometimes formulas of malediction were procured directly from the pope, which, like saints’ curses, could be applied without legal formalities. Thus in 1660 the inhabitants of Lucerne paid four pistoles and one Roman thaler for a document of this kind; on Nov. 15, 1731, the municipal council of Thonou in Savoy resolved to join with other parishes of that province to obtain from Rome an excommunication against insects, the expenses for which are to be assessed _pro rata_;[2] in 1740 the commune of Piuro purchased from His Holiness a similar anathema; in the same year the common council of Chiavenna discussed the propriety of applying to Rome for an execratory against beetles and bears; and in December 1752 it was proposed by the same body to take like summary measures in order to get rid of a pest of rodents. In 1729, 1730 and 1749 the municipal council of Lucerne ordered processions to be made on St. Magnus’ Day from the Church of St. Francis to Peter’s Chapel for the purpose of expelling weevils. This custom was observed annually from 1749 to 1798. The pompous ceremony has been superseded in Protestant countries by an officially appointed day of fasting and prayer.

In his “First Counsel” Chassenée not only treats of methods of procedure, and gives forms of plaints to be drawn up and tendered to the tribunal by the injured party, as well as useful hints to the pettifogger in the exercise of his tortuous and tricky profession, but he also discusses many legal principles touching the jurisdiction of courts, the functions of judges, and other characteristic questions of civil, criminal, and canonical law. Animals, he says, should be tried by ecclesiastical tribunals, except in cases where the penalty involves the shedding of blood. An ecclesiastical judge is not competent _in causa sanguinis_, and can impose only canonical punishments, although he may have jurisdiction in temporal matters and punish crimes not involving a capital sentence. [_Nam judex ecclesiasticus in causa sanguinis non est competens judex, licet habeat jurisdictionem in temporalibus et possit crimina poenam sanguinis non existentia_ (_exigentia_ is obviously the correct reading) _castigare_. Cons. prim. IV. § 5.] For this reason the Church never condemned heretics to death, but, having decided that they should die, gave them over to the secular power for formal condemnation, usually under the hollow and hypocritical pretence of recommending them to mercy. In the prosecution of animals the summons was commonly published from the parish pulpit and the whole judicial process bore a distinctively ecclesiastical character. In most cases the presiding judge or official was the vicar of the parish acting as the deputy of the bishop of the diocese. Occasionally the curate officiated in this capacity. Sometimes the trial was conducted before a civil magistrate under the authority of the Church, or the matter was submitted to the adjudication of a conjurer, who, however, appointed two proctors to plead respectively for the plaintiff and the defendant and who rendered his verdict in due legal form. Indeed, the word “conjurer” seems to have been used as a popular designation of the person, whether priest or layman, who exercised judicatory functions in such trials, probably because, as a rule, the sentence could be executed only by conjuration or the invocation of supernatural aid.

Another point, which strikes us very comically, but which had to be decided before the trial could proceed, was whether the accused were to be regarded as clergy or laity. Chassenée thinks that there is no necessity of testing each individual case, but that animals should be looked upon as lay persons. This, he declares, should be the general presumption; but if any one wishes to affirm that they have _ordinem clericatus_ and are entitled to benefit of clergy, the burden of proof rests upon him and he is bound to show it (_deberet estud probare_). Probably our jurist would have made an exception in favour of the beetle, which entomologists call _clerus_; it is certain, at any rate, that if a bug bearing this name had been brought to trial, the learning and acuteness displayed in arguing the point in dispute would have been astounding. We laugh at the subtilties and quiddities of mediæval theologians, who seriously discussed such silly questions as the digestibility of the consecrated elements in the eucharist; but the importance attached to these trivialities was not so much the peculiarity of a single profession as the mental habit of the age, the result of scholastic training and scholastic methods of investigation, which tainted law no less than divinity. Nevertheless the ancillary relations of all other sciences and disciplines to theology render the latter chiefly responsible for this fatal tendency.

Chassenée also makes a distinction between punitive and preventive purposes in the prosecution of animals, between inflicting penalties upon them for crimes committed and taking precautionary measures to keep them from doing damage. By this means he seeks to evade the objection, that animals are incapable of committing crimes, because they are not endowed with rational faculties. He then proceeds to show that “things not allowable in respect to crimes already committed are allowable in respect to crimes about to be committed in order to prevent them.” Thus a layman may not arrest an ecclesiastic for a delict fully consummated, but may seize and detain him in order to hinder the consummation of a delict. In such cases, an inferior may coerce and correct a superior; even an irrational creature may put restraint upon a human being and hold him back from wrong-doing. In illustration of this legal point he cites an example from Holy Writ, where “Balaam, the prophet and servant of the Most High, was rebuked by a she-ass.”

Chassenée endeavours to clinch his argument as usual by quoting biblical texts and adducing incidents from legendary literature. The province of zoö-psychology, which would have furnished him with better material for the elucidation of his subject, he leaves untouched, simply because it was unknown to him. If crime consists in the commission of deeds hurtful to other sentient beings, knowing such actions to be wrong, then the lower animals are certainly guilty of criminal offences. It is a well-established fact, that birds, beasts and insects, living together in communities, have certain laws, which are designed to promote the general welfare of the herd, the flock or the swarm, and the violation of which by individual members they punish corporally or capitally as the case may require. It is likewise undeniable, that domestic animals often commit crimes against man and betray a consciousness of the nature of their acts by showing fear of detection or by trying to conceal what they have done. Man, too, recognizes their moral responsibility by inflicting chastisement upon them, and sometimes feels justified in putting incorrigible offenders, a vicious bull, a thievish cat or a sheep-killing dog, summarily to death. Of course this kind of punishment is chiefly preventive, nevertheless it is provoked by acts already perpetrated and is not wholly free from the element of retributive justice. Such a proceeding, however, is arbitrary and autocratic, and if systematically applied to human beings would be denounced as intolerable tyranny. Chassenée insists that under no circumstances is a penalty to be imposed except by judicial decision--_nam poena nunquam imponitur, nisi lex expresse dicat_--and in support of this principle refers to the apostle Paul, who declares that “sin is not imputed when there is no law.” He appears to think that any technical error would vitiate the whole procedure and reduce the ban of the Church to mere _brutum fulmen_. If he lays so great stress upon the observance of legal forms, which in the criminal prosecution of brute beasts strike us as the caricature and farce of justice, it is because he deems them essential to the effectiveness of an excommunication. The slightest mispronunciation of a word, an incorrect accentuation or false intonation in uttering a spell suffices to dissolve the charm and nullify the occult workings of the magic. The lack of a single link breaks the connection and destroys the binding force of the chain; everything must be “well-thought, well-said and well-done,” not ethically, but ritually, as prescribed in the old Avestan formula: _humata hûkhta huvarshta_. All the mutterings and posturings, which accompany the performance of a Brahmanical sacrifice, or a Catholic mass, or any other kind of incantation have their significance, and none of them can be omitted without marring the perfection of the ceremonial and impairing its power. An anathema of animals pronounced in accordance with the sentence passed upon them by a tribunal, belongs to the same category of conjurations and is rendered nugatory by any formal defect or judicial irregularity.

Sometimes the obnoxious vermin were generously forewarned. Thus the grand-vicars of Jean Rohin, Cardinal Bishop of Autun, having been informed that slugs were devastating several estates in different parts of his diocese, on the 17th of August, 1487, ordered public processions to be made for three days in every parish, and enjoined upon the said slugs to quit the territory within this period under penalty of being accursed. On the 8th of September, 1488, a similar order was issued at Beaujeu. The curates were charged to make processions during the offices, and the slugs were warned three times to cease from vexing the people by corroding and consuming the herbs of the fields and the vines, and to depart; “and if they do not heed this our command, we excommunicate them and smite them with our anathema.” In 1516, the official of Troyes pronounced sentence on certain insects (_adversus brucos seu eurucas vel alia non dissimilia animalia, Gallicè urebecs_, probably a species of _curculio_), which laid waste the vines, and threatened them with anathema, unless they should disappear within six days. Here it is expressly stated that a counsellor was assigned to the accused, and a prosecutor heard in behalf of the aggrieved inhabitants. As a means of rendering the anathema more effective, the people are also urged to be prompt and honest in the payment of tithes. Chassenée, too, endorses this view, and in proof of its correctness refers to Malachi, where God promises to rebuke the devourer for man’s sake, provided all the tithes are brought into the storehouse.

The archives of the old episcopal city of St. Jean-de-Maurienne contain the original records of legal proceedings instituted against some insects, which had ravaged the vineyards of St. Julien, a hamlet situated on the route over Mt. Cenis and famous for the excellence of its vintage. The defendants in this case were a species of greenish weevil (charançon) known to entomologists as _rychites auratus_, and called by different names, amblevin, bèche, verpillion, in different provinces of France.

Complaint was first made by the wine-growers of St. Julien in 1545 before François Bonnivard, doctor of laws. The procurator Pierre Falcon and the advocate Claude Morel defended the insects, and Pierre Ducol appeared for the plaintiffs. After the presentation and discussion of the case by both parties, the official, instead of passing sentence, issued a proclamation, dated the 8th of May, 1546, recommending public prayers and beginning with the following characteristic preamble: “Inasmuch as God, the supreme author of all that exists, hath ordained that the earth should bring forth fruits and herbs (_animas vegetativas_), not solely for the sustenance of rational human beings, but likewise for the preservation and support of insects, which fly about on the surface of the soil, therefore it would be unbecoming to proceed with rashness and precipitance against the animals now actually accused and indicted; on the contrary, it would be more fitting for us to have recourse to the mercy of heaven and to implore pardon for our sins.” Then follow instructions as to the manner in which the public prayers are to be conducted in order to propitiate the divine wrath. The people are admonished to turn to the Lord with pure and undivided hearts (_ex toto et puro corde_), to repent of their sins with unfeigned contrition, and to resolve to live henceforth justly and charitably, and above all to pay tithes. High mass is to be celebrated on three consecutive days, namely on May 20th, 21st, and 22nd, and the host to be borne in solemn procession with songs and supplications round the vineyards. The first mass is to be said in honour of the Holy Spirit, the second in honour of the Blessed Virgin, and the third in honour of the tutelar saint of the parish. At least two persons of each household are required to take part in these religious exercises. A _procès-verbal_, signed by the curate Romanet, attests that this programme was fully carried out and that the insects soon afterwards disappeared.

About thirty years later, however, the scourge was renewed and the destructive insects were actually brought to trial. The proceedings are recorded on twenty-nine folia and entitled: _De actis scindicorum communitatis Sancti Julliani agentium contra animalia bruta ad formam muscarum volantia coloris viridis communi voce appellata verpillions seu amblevins_. The documents, which are still preserved in the archives of St. Julien, were communicated by M. Victor Dalbane, secretary of the commune, to M. Léon Ménebréa, who printed them in the appendix to his volume: _De l’origine de la forme et de l’esprit des jugements rendus au moyen-âge contre les animaux_. Chambery, 1846. This treatise appeared originally in the twelfth tome of the _Mémoires de la Société Royale Académique de Savoie_.

It may be proper to add that Ménebréa’s theory of “the spirit, in which these judgments against animals were given,” is wholly untenable. He maintains that “these procedures formed originally only a kind of symbol intended to revive the sentiment of justice among the masses of the people, who knew of no right except might and of no law except that of intimidation and violence. In the Middle Ages, when disorder reigned supreme, when the weak remained without support and without redress against the strong, and property was exposed to all sorts of attacks and all forms of ravage and rapine, there was something indescribably beautiful in the thought of assimilating the insect of the field to the masterpiece of creation and putting them on an equality before the law. If man should be taught to respect the home of the worm, how much more ought he to regard that of his fellow-man and learn to rule in equity.”

This explanation is very fine in sentiment, but expresses a modern, and not a mediæval way of thinking. The penal prosecution of animals, which prevailed during the Middle Ages, was by no means peculiar to that period, but has been frequently practised by primitive peoples and savage tribes; neither was it designed to inculcate any such moral lesson as is here suggested, nor did it produce any such desirable result. So far from originating in a delicate and sensitive sense of justice, it was, as will be more fully shown hereafter, the outcome of an extremely crude, obtuse, and barbaric sense of justice. It was the product of a social state, in which dense ignorance was governed by brute force, and is not to be considered as a reaction and protest against club-law, which it really tended to foster by making a travesty of the administration of justice and thus turning it into ridicule. It was also in the interest of ecclesiastical dignities to keep up this parody and perversion of a sacred and fundamental institute of civil society, since it strengthened their influence and extended their authority by subjecting even the caterpillar and the canker-worm to their dominion and control.

But to return to the records of the trial. On the 13th of April, 1587, the case was laid before “his most reverend lordship, the prince-bishop of Maurienne, or the reverend lord his vicar-general and official” by the syndics and procurators, François Amenet and Petremand Bertrand, who, in the name of the inhabitants of St. Julien, presented the following statement and petition: “Formerly by virtue of divine services and earnest supplications the scourge and inordinate fury of the aforesaid animals did cease; now they have resumed their depredations and are doing incalculable injury. If the sins of men are the cause of this evil, it behoveth the representatives of Christ on earth to prescribe such measures as may be appropriate to appease the divine wrath. Wherefore we the afore-mentioned syndics, François Amenet and Petremand Bertrand, do appear anew (_ex integro_) and beseech the official, first, to appoint another procurator and advocate for the insects in place of the deceased Pierre Falcon and Claude Morel, and secondly, to visit the grounds and observe the damage, and then to proceed with the excommunication.”

In compliance with this request, the distinguished Antoine Filliol was appointed procurator for the insects, with a moderate fee (_salario moderato_), and Pierre Rembaud their advocate. The parties appeared before the official on the 30th day of May and the case was adjourned to the 6th of June, when the advocate, Pierre Rembaud, presented his answer to the declaration of the plaintiffs, showing that their action is not maintainable and that they should be nonsuited. After approving of the course pursued by his predecessor in office, he affirms that his clients have kept within their right and not rendered themselves liable to excommunication, since, as we read in the sacred book of Genesis, the lower animals were created before man, and God said to them: Let the earth bring forth the living creature after his kind, cattle and creeping thing, and beast of the earth after his kind; and he blessed them saying, Be fruitful and multiply and fill the waters of the seas, and let fowl multiply in the earth. Now the Creator would not have given this command, had he not intended that these creatures should have suitable and sufficient means of support; indeed, he has expressly stated that to every thing that creepeth upon the earth every green herb has been given for meat. It is therefore evident that the accused, in taking up their abode in the vines of the plaintiffs, are only exercising a legitimate right conferred upon them at the time of their creation. Furthermore, it is absurd and unreasonable to invoke the power of civil and canonical law against brute beasts, which are subject only to natural law and the impulses of instinct. The argument urged by the counsel for the plaintiffs, that the lower animals are made subject to man, he dismisses as neither true in fact nor pertinent to the present case. He suggests that the complainants, instead of instituting judicial proceedings, would do better to entreat the mercy of heaven and to imitate the Ninevites, who, when they heard the warning voice of the prophet Jonah, proclaimed a fast and put on sackcloth. In conclusion, he demands that the petition of the plaintiffs be dismissed, the monitorium revoked and annulled, and all further proceedings stayed, to which end the gracious office of the judge is humbly implored (_humiliter implorato benigno officio judicis_).

The case was adjourned to the 12th and finally to the 19th of June, when Petremand Bertrand, the prosecuting attorney, presented a lengthy replication, of which the defendants’ advocate demanded a copy with due time for deliberation. This request led to a further adjournment till the 26th of June, but as this day turned out to be a _dies feriatus_ or holiday, no business could be transacted until the 27th, when the advocate of the commune, François Fay (who seems to have taken the place of Amenet, if he be not the same person), in reply to the defendants’ plea, argued that, although the animals were created before man, they were intended to be subordinate to him and subservient to his use, and that this was, indeed, the reason of their prior creation. They have no _raison d’être_ except as they minister to man, who was made to have dominion over them, inasmuch as all things have been put under his feet, as the Psalmist asserts and the apostle Paul reiterates. On this point, he concludes, our opponent has added nothing refutatory of the views, which have been held from time immemorial by our ancestors; we need only refer to the opinions formerly expressed by the honourable Hippolyte Ducol as satisfactory. The advocate for the defence merely remarked that he had not yet received the document ordered on the 19th of June, and the further consideration of the case was postponed till the 4th of July. Antoine Filliol then made a rejoinder to the plaintiffs’ replication, denying that the subordination of the lower animals to man involves the right of excommunicating them, and insisting upon his former position, which the opposing counsel had not even attempted to disprove, namely, that the lower animals are subject solely to natural law, “a law originating in the eternal reason and resting upon a basis as immutable as that of the divine law of revelation, since they are derived from the same source, namely, the will and power of God.” It is evident, he adds, that the action brought by the plaintiffs is not maintainable and that judgment should be given accordingly.

On the 18th of July, the same parties appear before the official of St. Jean-de-Maurienne. The procurator of the insects demands that the case be closed and the plaintiffs debarred from drawing up any additional statements or creating any further delay by the introduction of irrelevant matter, and requests that a decision be rendered on the documents and declarations already adduced. The prosecuting attorney, whose policy seems to have been to keep the suit pending as long as possible, applies for a new term (_alium terminum_), which was granted.

Meanwhile, in view of the law’s long delay, other measures were taken for the speedier adjustment of the affair by compromise. On the 29th of June, 1587, a public meeting was called at noon immediately after mass on the great square of St. Julien, known as Parloir d’Amont, to which all hinds and habitants (_manants et habitants_) were summoned by the ringing of the church bell to consider the propriety and necessity of providing for the said animals a place outside of the vineyards of St. Julien, where they might obtain sufficient sustenance without devouring and devastating the vines of the said commune. This meeting appears to have been held by the advice of the plaintiffs’ advocate, François Fay, and at the suggestion of the official. A piece of ground in the vicinity was selected and set apart as a sort of insect enclosure, the inhabitants of St. Julien, however, reserving for themselves the right to pass through the said tract of land, “without prejudice to the pasture of the said animals,” and to make use of the springs of water contained therein, which are also to be at the service of the said animals; they reserve furthermore the right of working the mines of ochre and other mineral colours found there, without doing detriment to the means of subsistence of said animals, and finally the right of taking refuge in this spot in time of war or in case of like distress. The place chosen is called La Grand Feisse and described with the exactness of a topographical survey, not only as to its location and dimensions, but also as to the character of its foliage and herbage. The assembled people vote to make this appropriation of land and agree to draw up a conveyance of it “in good form and of perpetual validity,” provided the procurator and advocate of the insects may, on visitation and inspection of the ground, express themselves satisfied with such an arrangement; in witness whereof the protocol is signed “L. Prunier, curial,” and stamped with the seal of the commune.

But this attempt of the inhabitants to conciliate the insects and to settle their differences by mutual concessions did not put an end to the litigation. On the 24th of July, an “Extract from the Register of the Curiality of St. Julien,” containing the proceedings of the public meeting, was submitted to the court by Petremand Bertrand, procurator of the plaintiffs, who called attention to the very generous offer made by the commune and prayed the official to order the grant to be accepted on the conditions specified, and to cause the defendants to vacate the vineyards and to forbid them to return to the same on pain of excommunication. Antoine Filliol, procurator of the insects, requested a copy of the _procès-verbal_ and time for deliberation. The court complied with this request and adjourned the case till “the first juridical day after the harvest vacation,” 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 maxim by mediæval jurisprudents that no animal devoid of understanding can commit a fault (_nec enim potest animal injuriam fecisse quod sensu caret_). This doctrine is endorsed by the great theologian and scholastic Thomas of Aquino. If we regard the lower animals, he says, as creatures coming from the hand of God and employed by him as agents for the execution of his judgments, then to curse them would be blasphemous; if, on the other hand, we curse them _secundem se_, i.e. merely as brute beasts, then the malediction is odious and vain and therefore unlawful (_est odiosum et vanum et per consequens illicitum_). There is, however, another ground, on which the right of excommunication or anathematization may be asserted and fully vindicated, namely, that the lower animals are satellites of Satan “instigated by the powers of hell and therefore proper to be cursed,” as the Doctor angelicus puts it. Chassenée refers to this opinion in the treatise already cited (I. § 75), and adds “the anathema then is not to be pronounced against the animals as such, but should be hurled inferentially (_per modum conclusionis_) at the devil, who makes use of irrational creatures to our detriment.” This notion seems to have been generally accepted in the Middle Ages, and the fact that evil spirits are often mentioned in the Bible metaphorically or symbolically as animals and assumed to be incarnate in the adder, the asp, the basilisk, the dragon, the lion, the leviathan, the serpent, the scorpion, etc., was considered confirmatory of this view.

But not all animals were regarded as diabolical incarnations; on the contrary, many were revered as embodiments and emblems of divine perfections. In a work entitled _Le Liure du Roy Modus et de la Reyne Racio_ (The Book of King Mode and Queen Reason), which, as the colophon records, was “printed at Chambery by Anthony Neyret in the year of grace one thousand four hundred and eighty-six on the thirtieth day of October,” King Mode discourses on falconry and venery in general. Queen Reason brings forward, in reply to these rather conventional commonplaces, “several fine moralities,” and dilates on the natural and mystic qualities of animals, which she divides into two classes, sweet beasts (_bestes doulces_) and stenchy beasts (_bestes puantes_). Foremost among the sweet beasts stands that which Milton characterizes as

“Goodliest of all the forest, hart and hind.”