Chapter I: Bugs and Beasts Before the Law (3)

M. Bailly then cites numerous instances of this kind, in which a writer on logic would find ample illustrations of the fallacy known as _post hoc, ergo propter hoc_. Thus in the latter half of the fifteenth century, during the reign of Charles the Bold, Duke of Burgundy, a plague of locusts threatened the province of Mantua in Northern Italy with famine, but were dispersed by excommunication. He quotes some florid lines from the poet Altiat descriptive of these devastating swarms, which “came, after so many other woes, under the leadership of Eurus (_i.e._ brought by the east wind), more destructive than the hordes of Attila or the camps of Corsicans, devouring the hay, the millet and the corn, and leaving only vain wishes, where the hopes of August stood.” Again in 1541, a cloud of locusts fell upon Lombardy, and by destroying the crops, caused many persons to perish with hunger. These insects “were as long as a man’s finger, with large heads and bellies filled with vileness; and when dead they infected the air and gave forth a stench, which even carrion kites and carnivorous beasts could not endure.” Another instance is given, in which swarms of four-winged insects came from Tartary, identified in the popular mind with Tartarus, obscuring the sun in their flight and covering the plains of Poland a cubit deep. In the year 1338, on St. Bartholomew’s Day, these creatures began to devastate the region round Botzen in the Tyrol, consuming the crops and laying eggs and leaving a numerous progeny, which seemed destined to continue the work of destruction indefinitely. A prosecution was therefore instituted against them before the ecclesiastical court at Kaltern, a large market-town about ten miles south of Botzen, then as now famous for its wines, and the parish priest instructed to proceed against them with the sentence of excommunication in accordance with the verdict of the tribunal. This he did by the solemn ceremony of “inch of candle,” and anathematized them “in the name of the Blessed Trinity, Father, Son and Holy Ghost.” Owing to the sins of the people and their remissness in the matter of tithes the devouring insects resisted for a time the power of the Church, but finally disappeared. Under the reign of Lotharius II., early in the twelfth century, enormous quantities of locusts, “having six wings with two teeth harder than flint” and “darkening the sky and whitening the air like a snowstorm,” laid waste the most fertile provinces of France. Many of them perished in the rivers and the sea, and being washed ashore sent forth a putrescent smell and produced a fearful pestilence. Precisely the same phenomenon, with like disastrous results, is described by St. Augustine in the last book of _De Civitate Dei_ as having occurred in Africa and caused the death of 800,000 persons.

In the majority of cases adduced there is no evidence that the Church intervened at all with its fulminations, and, even when the anathema was pronounced, the insects appear to have departed of their own free-will after having eaten up every green thing and reduced the inhabitants to the verge of starvation; and yet M. Bailly, supposed to be a man of judicial mind, disciplined by study, accustomed to reason and to know what sound reasoning is, goes on giving accounts of such scourges, as though they proved in some mysterious way the effectiveness of ecclesiastical excommunications and formed a cumulative argument in support of such claims.

The most important portion of M. Bailly’s work is that in which he shows how actions of this kind should be brought and conducted, with specimens of plaints, pleas, replications, rejoinders, and decisions. First in order comes the petition of the inhabitants seeking redress (_requeste des habitans_), which is followed in regular succession by the declaration or plea of the inhabitants (_plaidoyer des habitans_), the defensive allegation or plea for the insects (_plaidoyer pour les insectes_), the replication of the inhabitants (_réplique des habitans_), the rejoinder of the defendant (_réplique du defendeur_), the conclusions of the bishop’s proctor (_conclusions du procureur episcopal_), and the sentence of the ecclesiastical judge (_sentence du juge d’église_), which is solemnly pronounced in Latin. The pleadings on both sides are delivered in French and richly interlarded with classical allusions and Latin quotations, being even more heavily weighted with the spoils of erudition than the set speech of a member of the British Parliament.

The following abridgment of the plea, in which the prosecuting attorney sets forth the cause of complaint, is a fair specimen of the forensic eloquence displayed on such occasions:

“Gentlemen, these poor people on their knees and with tearful eyes, appeal to your sense of justice, as the inhabitants of the islands Majorica and Minorica formerly sent an embassy to Augustus Cæsar, praying him for a cohort of soldiers to exterminate the rabbits, which were burrowing in their fields and consuming their crops. In the power of excommunication you have a weapon more effective than any wielded by that emperor to save these poor suppliants from impending famine produced by the ravages of little beasts, which spare neither the corn nor the vines, ravages like those of the boar that laid waste the environs of Calydon, as related by Homer in the first book of the _Iliad_, or those of the foxes sent by Themis to Thebes, which destroyed the fruits of the earth and the cattle and assailed even the husbandmen themselves. You know how great are the evils which famine brings with it, and you have too much kindness and compassion to permit my clients to be involved in such distress, thus constraining them to perpetrate cruel and unlawful deeds; _nec enim rationem patitur, nec ulla aequitate mitigatur, nec prece ulla flectitur esuriens populus_: for a starving people is not amenable to reason, nor tempered by equity, nor moved by any prayer. Witness the mothers, of whom it is recorded in the Fourth Book of the Kings, that they ate their own children, the one saying to the other: ‘Give thy son that we may eat him to-day, and we will eat my son tomorrow.’” The advocate then discourses at length of the horrors of hunger and its disastrous effects upon the individual and the community, lugging in what Milton calls a “horse-load of citations” from Arianus Marcellinus, Ovid and other Latin prosaists and poets, introduces an utterly irrelevant allusion to Joshua and the crafty Gibeonites, and concludes as follows: “The full reports received as the result of an examination of the fields, made at your command, suffice for your information concerning the damage done by these animals. It remains, therefore, after complying with the usual forms, only to adjudicate upon the case in accordance with the facts stated in the Petition of the Plaintiffs, which is right and reasonable, and, to this effect, to enjoin these animals from continuing their devastations, ordering them to quit the aforesaid fields and to withdraw to the place assigned them, pronouncing the necessary anathemas and execrations prescribed by our Holy Mother, the Church, for which your petitioners do ever pray.”

It is doubtful whether any speaking for Buncombe in the halls of Congress or any spouting of an ignorant bumpkin in the moot-court of an American law-school ever produced such a rhetorical hotchpotch of “matter and impertinency mixed” as the earnest plea, of which the above is a brief abstract.

Rather more to the point, but equally overburdened with legal lore and literary pedantry, is the rejoinder of the counsel for the insects:

“Gentlemen, inasmuch as you have chosen me to defend these little beasts (_bestioles_), I shall, an it please you, endeavour to right them and to show that the manner of proceeding against them is invalid and void. I confess that I am greatly astonished at the treatment they have been subjected to and at the charges brought against them, as though they had committed some crime. Thus information has been procured touching the damage said to have been done by them; they have been summoned to appear before this court to answer for their conduct, and, since they are notoriously dumb, the judge, wishing that they should not suffer wrong on account of this defect, has appointed an advocate to speak in their behalf and to set forth in conformity with right and justice the reasons, which they themselves are unable to allege.

“Since you have permitted me to appear in defence of these poor animals, I will state, in the first place, that the summons served on them is null and void, having been issued against beasts, which cannot and ought not to be cited before this judgment seat, inasmuch as such a procedure implies that the parties summoned are endowed with reason and volition and are therefore capable of committing crime. That this is not the case with these creatures is clear from the paragraph _Si quadrupes_, etc., in the first book of the Pandects, where we find these words: _Nec enim potest animal injuriam fecisse, quod sensu caret_.

“The second ground, on which I base the defence of my clients, is that no one can be judicially summoned without cause, and whoever has had such a summons served renders himself liable to the penalty prescribed by the statute _De poen. tem. litig._ As regards these animals there is no _causa justa litigandi_; they are not bound in any manner, _non tenentur ex contractu_, being incompetent to make contracts or to enter into any compact or covenant whatsoever, _neque ex quasi contractu_, _neque ex stipulatione_, _neque ex pacto_, and still less _ex delicto seu quasi_, can there be any question of a delict or any semblance thereof, since, as has just been shown, the rational faculties essential to the capability of committing criminal actions are wanting.

“Furthermore, it is illicit to do that which is nugatory and of non-effect (_qui ne porte coup_); in this respect justice is like nature, which, as the philosopher affirms, does nothing _mal à propos_ or in vain: _Deus enim et Natura nihil operantur frustra_. Now I leave it to you to decide whether anything could be more futile than to summon these irrational creatures, which can neither speak for themselves, nor appoint proxies to defend their cause; still less are they able to present memorials stating grounds of their justification. If then, as I have shown, the summons, which is the basis of all judicial action, is null and void, the proceedings dependent upon it will not be able to stand: _cum enim principalis causa non consistat, neque ea quae consequuntur locum habent_.”

The counsel for the defence rests his argument, of which the extract just given may suffice as a sample, upon the irrationality and consequent irresponsibility of his clients. For this reason he maintains that the judge cannot appoint a procurator to represent them, and cites legal authorities to show that the incompetency of the principal implies the incompetency of the proxy, in conformity with the maxim: _quod directe fieri prohibetur, per indirectum concedi non debet_. In like manner the invalidity of the summons bars any charge of contempt of court and condemnation for contumacy. Furthermore, the very nature of excommunication is such that it cannot be pronounced against them, since it is defined as _extra ecclesiam positio, vel è qualibet communione, vel quolibet legitimo actu separatio_. But these animals cannot be expelled from the Church, because they are not members of it and do not fall under its jurisdiction, as the apostle Paul says: “Ye judge them that are within and not them also that are without.” _Excommunicatio afficit animam, non corpus, nisi per quandam consequentiam, cujus medicina est._ The animal soul, not being immortal, cannot be affected by such sentence, which involves the loss of eternal salvation (_quae vergit in dispendium aeternae salutis_).

A still more important consideration is that these insects are only exercising an innate right conferred upon them at their creation, when God expressly gave them “every green herb for meat,” a right which cannot be curtailed or abrogated, simply because it may be offensive to man. In support of this view he quotes passages from Cicero’s treatise _De Officiis_, the Epistle of Jude and the works of Thomas Aquinas. Finally, he maintains that his clients are agents of the Almighty sent to punish us for our sins, and to hurl anathemas against them would be to fight against God (_s’en prendre à Dieu_), who has said: “I will send wild beasts among you, which shall destroy you and your cattle and make you few in number.” That all flesh has corrupted its way upon the earth, he thinks is as true now as before the deluge, and cites about a dozen lines from the _Metamorphoses_ of Ovid in confirmation of this fact. In conclusion he demands the acquittal of the defendants and their exemption from all further prosecution.

The prosecuting attorney in his replication answers these objections in regular order, showing, in the first place, that, while the law may not punish an irrational creature for a crime already committed, it may intervene, as in the case of an insane person, to prevent the commission of a crime by putting the madman in a strait-jacket or throwing him into prison. He elucidates this principle by a rather far-fetched illustration from the legal enactments concerning betrothal and breach of promise of marriage. “It follows then inferentially that the aforesaid animals can be properly summoned to appear and that the summons is valid, inasmuch as this is done in order to prevent them from causing damage henceforth (_d’ores en avant_) and only incidentally to punish them for injuries already inflicted.”

“To affirm that such animals cannot be anathematized and excommunicated is to doubt the authority conferred by God upon his dear spouse, the Church, whom he has made the sovereign of the whole world, having, in the words of the Psalmist, put all things under her feet, all sheep and oxen, the beasts of the field, the fowl of the air, the fish of the sea and whatsoever passeth through the paths of the seas. Guided by the Holy Spirit she does nothing unwisely; and if there is anything in which she should show forth her power it is in protecting and preserving the most perfect work of her heavenly husband, to wit, man, who was made in the divine image and likeness.” The orator then dilates on the grandeur and glory of man and interlards his harangue with quotations from sacred and profane writers, Moses, Paul, Pliny, Ovid, Silius Italicus and Pico di Mirandola, and declares that nothing could be more absurd than to deprive such a being of the fruits of the earth for the sake of “vile and paltry vermin.” In reply to the statement of Thomas Aquinas, quoted by the counsel for the defence, that it is futile to curse animals as such, the plaintiffs’ advocate says that they are not viewed merely as animals, but as creatures doing harm to man by eating and wasting the products of the soil designed for human sustenance; in other words he ascribes to them a certain diabolical character. “But why dwell upon this point, since besides the instances recorded in Holy Writ, in which God curses inanimate things and irrational creatures, we have an infinite number of examples of holy men, who have excommunicated noxious animals. It will suffice to mention one familiar to us all and constantly before our eyes in the town of Aix, where St. Hugon, Bishop of Grenoble, excommunicated the serpents, which infested the warm baths and killed many of the inhabitants by biting them. Now it is well known, that if the serpents in that place or in the immediate vicinity bite any one, the bite is no longer fatal. The venom of the reptile was stayed and annulled by virtue of the excommunication, so that no hurt ensues from the bite, although the bite of the same kind of serpent outside of the region affected by the ban, is followed by death.”

That serpents and other poisonous reptiles could be deprived of their venom by enchantment and thus rendered harmless is in accord with the teachings of the Bible. Thus we read in Ecclesiastes (x. 11): “Surely the serpent will bite without enchantment,” _i.e._ unless it be enchanted and its bite disenvenomed. A curious superstition concerning the adder is referred to in the Psalms (lviii. 4, 5), where the wicked are said to be “like the deaf adder that stoppeth her ear; which will not hearken to the voice of charmers, charming never so wisely.” The Lord is also represented by Jeremiah (viii. 17) as threatening to “send serpents, cockatrices, among you, which will not be charmed, and they shall bite you.” It does not seem to have occurred to the prosecutor that the defendants might be locusts, which would not be excommunicated.

The objection that God has sent these insects as a scourge, and that to anathematize them would be to fight against him, is met by saying that to have recourse to the offices of the Church is an act of religion, which does not resist, but humbly recognizes the divine will and makes use of the means appointed for averting the divine wrath and securing the divine favour.

After the advocates had finished their pleadings, the case was summed up by the episcopal procurator substantially as follows:

“The arguments offered by the counsel for the defence against the proceedings instituted by the inhabitants as complainants are worthy of careful consideration and deserve to be examined soberly and maturely, because the bolt of excommunication should not be hurled recklessly and at random (_à la volée_), being a weapon of such peculiar energy and activity that, if it fails to strike the object against which it is hurled, it returns to smite him, who hurled it.” [This notion that an anathema is a dangerous missile to him who hurls it unlawfully or for an unjust purpose, retroacting like an Australian boomerang, survives in the homely proverb: “Curses, like chickens, come home to roost.”] The bishop’s proctor reviews the speeches of the lawyers, but seems to have his brains somewhat muddled by them. “It is truly a deep sea,” he says, “in which it is impossible to touch bottom. We cannot tell why God has sent these animals to devour the fruits of the earth; this is for us a sealed book (_lettres closes_).” He suggests it may be “because the people turn a deaf ear to the poor begging at their doors,” and goes off into a long eulogy on the beauty of charity, with an anthology of extracts from various writers in praise of alms-giving, among which is one from Eusebius descriptive of hell as a cold region, where the wailing and gnashing of teeth are attributed to the torments of eternal frost instead of everlasting fire (_liberaberis ab illo frigore, in quo erit fletus et stridor dentium_). Again, the plague of insects may be due to irreverence shown in the churches, which, he declares, have been changed from the house of God into houses of assignation. On this point he quotes from Tertullian, Augustine, and Numa Pompilius, and concludes by recommending that sentence of excommunication be pronounced upon the insects, and that the prayers and penances, customary in such cases, be imposed upon the inhabitants.

After this discourse, which reads more like a homily from the pulpit than a plea at the bar and in the mouth of the bishop’s proctor is simply an _oratio pro domo_, the official gave judgment in favour of the plaintiffs. The sentence, which was pronounced in Latin befitting the dignity and solemnity of the occasion, condemned the defendants to vacate the premises within six days on pain of anathema.

The official begins by stating the case as that of “The People _versus_ Locusts,” declaring that the guilt of the accused has been clearly proved “by the testimony of worthy witnesses and, as it were, by public rumour,” and inasmuch as the people have humbled themselves before God and supplicated the Church to succour them in their distress, it is not fitting to refuse them help and solace. “Walking in the footsteps of the fathers, sitting on the judgment-seat, having the fear of God before our eyes and confiding in his mercy, relying on the counsel of experts, we pronounce and publish our sentence as follows:

“In the name and by virtue of God, the omnipotent, Father, Son and Holy Spirit, and of Mary, the most blessed Mother of our Lord Jesus Christ, and by the authority of the holy apostles Peter and Paul, as well as by that which has made us a functionary in this case, we admonish by these presents the aforesaid locusts and grasshoppers and other animals by whatsoever name they may be called, under pain of malediction and anathema to depart from the vineyards and fields of this district within six days from the publication of this sentence and to do no further damage there or elsewhere.” If, on the expiration of this period, the animals have refused to obey this injunction, then they are to be anathematized and accursed, and the inhabitants of all classes are to beseech “Almighty God, the dispenser of all good gifts and the dispeller of all evils,” to deliver them from so great a calamity, not forgetting to join with devout supplications the performance of all good works and especially “the payment of tithes without fraud according to the approved custom of the parish, and to abstain from blasphemies and such other sins as are of a public and particularly offensive character.” (_Vide_ Appendix B.)

It is doubtful whether one could find in the ponderous tomes of scholastic divinity anything surpassing in comical _non sequiturs_ and sheer nonsense the forensic eloquence of eminent lawyers as transmitted to us in the records of legal proceedings of this kind. Although the counsel for the defendants, as we have seen, ventured to question the propriety and validity of such prosecutions, his scepticism does not seem to have been taken seriously, but was evidently smiled at as the trick of a pettifogger bound to use every artifice to clear his clients. In the writings of mediæval jurisprudents the right and fitness of inflicting judicial punishment upon animals appear to have been generally admitted. Thus Guy Pape, in his _Decisions of the Parliament of Grenoble_ (Qu. 238), raises the query, whether a brute beast, if it commit a crime, as pigs sometimes do in devouring children, ought to suffer death, and answers the question unhesitatingly in the affirmative: “_si animal brutum delinquat, sicut quandoque faciunt porci qui comedunt pueros, an debeat mori? Dico quod sic._” Jean Duret, in his elaborate Treatise on Pains and Penalties (_Traicté des Peines et des Amendes_, p. 250; cf. _Thémis Jurisconsulte_, VIII. p. 57), takes the same view, declaring that “if beasts not only wound, but kill and eat any person, as experience has shown to happen frequently in cases of little children being eaten by pigs, they should pay the forfeit of their lives and be condemned to be hanged and strangled, in order to efface the memory of the enormity of the deed.” The distinguished Belgian jurist, Jodocus Damhouder, discusses this question in his _Rerum Criminalium Praxis_ (cap. CXLII.), and holds that the beast is punishable, if it commits the crime through natural malice, and not through the instigation of others, but that the owner can redeem it by paying for the damage done; nevertheless he is not permitted to keep ferocious or malicious beasts and let them run at large, so as to be a constant peril to the community. Occasionally a more enlightened jurist had the common-sense and courage to protest against such perversions and travesties of justice. Thus Pierre Ayrault, _lieutenant-criminel au siége présidial d’Angers_, published at Angers, in 1591, a small quarto entitled: _Des Procez faicts au Cadaver, aux Cendres, à la Mémoire, aux Bestes brutes, aux Choses inanimées et aux Contumax_, in which he argued that corpses, the ashes and the memory of the dead, brute beasts and inanimate things are not legal persons (_legales homines_) and therefore do not come within the jurisdiction of a court. Curiously enough a case somewhat analogous to those discussed by Pierre Ayrault was adjudicated upon only a few years ago. A Frenchman bequeathed his property to his own corpse, in behalf of which his entire estate was to be administered, the income to be expended for the preservation of his mortal remains and the adornment of the magnificent mausoleum in which they were sepulchred. His heirs-at-law contested the will, which was declared null and void by the court on the ground that “a subject deprived of individuality or of civil personality” could not inherit. The same principle would apply to the infliction of penalties upon such subjects. The only kind of legacy that will cause a man’s memory to be cherished is the form of bequest which makes the public weal his legatee. The Chinese still hold to the barbarous custom of bringing corpses to trial and passing sentence upon them. On the 6th of August, 1888, the cadaver of a salt-smuggler, who was wounded in the capture and died in prison, was brought before the criminal court in Shanghai and condemned to be beheaded. This sentence was carried out by the proper officers on the place of execution outside of the west gate of the city.

Felix Hemmerlein, better known as Malleolus, a distinguished doctor of canon law and proto-martyr of religious reform in Switzerland, states in his _Tractatus de Exorcismis_, that in the fourteenth century the peasants of the Electorate of Mayence brought a complaint against some Spanish flies, which were accordingly cited to appear at a specified time and answer for their conduct; but “in consideration of their small size and the fact that they had not yet reached their majority,” the judge appointed for them a curator, who “defended them with great dignity”; and, although he was unable to prevent the banishment of his wards, he obtained for them the use of a piece of land, to which they were permitted peaceably to retire. How they were induced to go into this insect reservation and to remain there we are not informed. The Church, as already stated, claimed to possess the power of effecting the desired migration by means of her ban. If the insects disappeared, she received full credit for accomplishing it; if not, the failure was due to the sins of the people; in either case the prestige of the Church was preserved and her authority left unimpaired.

In 1519, the commune of Stelvio, in Western Tyrol, instituted criminal proceedings against the moles or field-mice,[3] which damaged the crops “by burrowing and throwing up the earth, so that neither grass nor green thing could grow.” But “in order that the said mice may be able to show cause for their conduct by pleading their exigencies and distress,” a procurator, Hans Grinebner by name, was charged with their defence, “to the end that they may have nothing to complain of in these proceedings.” Schwarz Mining was the prosecuting attorney, and a long list of witnesses is given, who testified that the serious injury done by these creatures rendered it quite impossible for tenants to pay their rents. The counsel for the defendants urged in favour of his clients the many benefits which they conferred upon the community, and especially upon the agricultural class by destroying noxious insects and larvæ and by stirring up and enriching the soil, and concluded by expressing the hope that, if they should be sentenced to depart, some other suitable place of abode might be assigned to them. He demanded, furthermore, that they should be provided with a safe conduct securing them against harm or annoyance from dog, cat or other foe. The judge recognized the reasonableness of the latter request, in its application to the weaker and more defenceless of the culprits, and mitigated the sentence of perpetual banishment by ordering that “a free safe-conduct and an additional respite of fourteen days be granted to all those which are with young and to such as are yet in their infancy; but on the expiration of this reprieve each and every must be gone, irrespective of age or previous condition of pregnancy.” (_Vide_ Appendix C.)

An old Swiss chronicler named Schilling gives a full account of the prosecution and anathematization of a species of vermin called inger, which seems to have been a coleopterous insect of the genus Brychus and very destructive to the crops. The case occurred in 1478 and the trial was conducted before the Bishop of Lausanne by the authority and under the jurisdiction of Berne. The first document recorded is a long and earnest declaration and admonition delivered from the pulpit by a Bernese parish-priest, Bernhard Schmid, who begins by stating that his “dearly beloved” are doubtless aware of the serious injury done by the inger and of the suffering which they have caused. The Leutpriester, as he is termed, gives a brief history of the matter and of the measures taken to procure relief. The mayor and common council of Berne were besought in their wisdom to devise some means of staying the plague, and after much earnest deliberation they held counsel with the Bishop of Lausanne, who “with fatherly feeling took to heart so great affliction and harm” and by an episcopal mandate enjoined the inger from committing further depredations. After exhorting the people to entreat God by “a common prayer from house to house” to remove the scourge, he proceeds to warn and threaten the vermin in the following manner: “Thou irrational and imperfect creature, the inger, called imperfect because there was none of thy species in Noah’s ark at the time of the great bane and ruin of the deluge, thou art now come in numerous bands and hast done immense damage in the ground and above the ground to the perceptible diminution of food for men and animals; and to the end that such things may cease, my gracious Lord and Bishop of Lausanne has commanded me in his name to admonish you to withdraw and to abstain; therefore by his command and in his name and also by virtue of the high and holy trinity and through the merits of the Redeemer of mankind, our Saviour Jesus Christ, and in virtue of and obedience to the Holy Church, I do command and admonish you, each and all, to depart within the next six days from all places where you have secretly or openly done or might still do damage, also to depart from all fields, meadows, gardens, pastures, trees, herbs, and spots, where things nutritious to men and to beasts spring up and grow, and to betake yourselves to the spots and places, where you and your bands shall not be able to do any harm secretly or openly to the fruits and aliments nourishing to men and beasts. In case, however, you do not heed this admonition or obey this command, and think you have some reason for not complying with them, I admonish, notify and summon you in virtue of and obedience to the Holy Church to appear on the sixth day after this execution at precisely one o’clock after midday at Wifflisburg, there to justify yourselves or to answer for your conduct through your advocate before His Grace the Bishop of Lausanne or his vicar and deputy. Thereupon my Lord of Lausanne or his deputy will proceed against you according to the rules of justice with curses and other exorcisms, as is proper in such cases in accordance with legal form and established practice.” The priest then exhorts his “dear children” devoutly to beg and to pray on their knees with Paternosters and Ave Marias to the praise and honour of the high and holy trinity, and to invoke and crave the divine mercy and help in order that the inger may be driven away. (_Vide_ Appendix D.)

There is no further record of proceedings at this time, and it is highly probable that the detection of some technical error rendered it necessary to postpone the case, since this pettifogger’s trick was almost always resorted to and proved generally successful in procuring an adjournment. At any rate either this or a precisely similar trial occurred in the following year. Early in May 1479, the mayor and common council of Berne sent copies of the monitorium and citation issued by the Bishop of Lausanne to their representative for distribution among the priests of the afflicted parishes, in order that it might be promulgated from their respective pulpits and thus brought to the knowledge of the delinquents. About a week later, on May 15, the same authorities sent also a letter to the Bishop of Lausanne asking for new instructions in the matter, as they were not certain how they should proceed, urging that immediate steps should be taken, as the further delay would be “utterly intolerable.” This impatience would seem to imply that the anathema had been hanging fire for some time and that the prosecution was identical with that of the preceding year.

The appointed term having elapsed and the inger still persisting in their obduracy, the mayor and common council of Berne issued the following document conferring plenipotentiary power of attorney on Thüring Fricker to prosecute the case: “We, the mayor, council and commune of the city of Berne, to all those of the bishopric of Lausanne, who see, read, or hear this letter. We make known that after mature deliberation we have appointed, chosen and deputed and by virtue of the present letter do appoint, choose and depute the excellent Thüring Fricker, doctor of the liberal arts and of laws, our now chancellor, to be our legal delegate and agent and that of our commune, as well as of all the lands and places of the bishopric of Lausanne, which are directly or indirectly subject and appurtenant to us and of which a complete list is herein contained. And indeed he has assumed this general and special attorneyship, whereof the one shall not be prejudicial to the other, in the case which we have undertaken and prosecute and have determined to prosecute before the court of the right reverend in Christ Benedict de Montferrand, Bishop of Lausanne, Count and our most worthy Superior, against the noxious host of the inger (_brucorum_), which creeping secretly in the earth devastate the fields, meadows and all kinds of grain, whereby with grievous wrong they do detriment to the ever-living God, to whom the tithes belong, and to men, who are nourished therewith and owe obedience to him. In this cause he shall act in our stead, and in the name of all of us collectively and severally shall plead, demur, reply, prove by witnesses, hear judgment or judgments, appoint other defenders and in general and specially do each and every thing which the importance of the cause may demand and which we ourselves in case of our presence would be able to do. We solemnly promise in good faith that all and the whole of what may be transacted, performed, provided, pledged, and ordained in this cause by our aforesaid attorney or by the proxy appointed by him shall be firmly and gratefully observed by us, with the express renunciation of each and every thing that might either by right or actually, in any wise, either wholly or partially impair, weaken or assail our ordainment, conclusion and determination, also over against any reservation of right, which permits a general renunciation, even if no special reservation has preceded, with the exclusion of every fraud and every deceit. In corroboration and confirmation of the aforesaid we ratify this letter with the warranty of our seal. Given on the twenty-second of May 1479.”

The trial began a couple of days later and was conducted with less “of the law’s delay” than usual, inasmuch as it ended on the twenty-ninth day of the same month. The defender of the insects was a certain Jean Perrodet of Freiburg, who according to all accounts was a very inefficient advocate and does not appear to have contested the case with the ability and energy which the interests of his clients required. The sentence of the court with the appended anathema of the bishop was as follows: “Ye accursed uncleanness of the inger, which shall not be called animals nor mentioned as such, ye have been heretofore by virtue of the appeal and admonition of our Lord of Lausanne enjoined to withdraw from all fields, grounds and estates of the bishopric of Lausanne, or within the next six days to appear at Lausanne, through your proctor, to set forth and to hear the cause of your procedure, and to act with just judgment either for or against you, pursuant to the said citation. Thereupon our gracious Lords of Berne solicited by their mandate such a day in court at Lausanne, and there before the tribunal renewed their plaint in their name and in that of all the provinces of the said bishopric, and your reply thereto through your proctor has been fully heard, and the legal terms have been justly observed by both parties, and a lawful decision pronounced word for word in this wise:

“We, Benedict of Montferrand, Bishop of Lausanne, etc., having heard the entreaty of the high and mighty lords of Berne against the inger and the ineffectual and rejectable answer of the latter, and having thereupon fortified ourselves with the Holy Cross, and having before our eyes the fear of God, from whom alone all just judgments proceed, and being advised in this cause by a council of men learned in the law, do therefore acknowledge and avow in this our writing that the appeal against the detestable vermin and inger, which are harmful to herbs, vines, meadows, grain and other fruits, is valid, and that they be exorcised in the person of Jean Perrodet, their defender. In conformity therewith we charge and burden them with our curse, and command them to be obedient and anathematize them in the name of the Father, the Son and the Holy Ghost, that they turn away from all fields, grounds, enclosures, seeds, fruits and produce, and depart. By virtue of the same sentence I declare and affirm that you are banned and exorcised, and through the power of Almighty God shall be called accursed and shall daily decrease whithersoever you may go, to the end that of you nothing shall remain save for the use and profit of man. _Adiungendo aliquid in devotionem populi._” The phrase _das si beswärt werden in die person Johannis Perrodeti irs beschirmers_ does not imply that the vermin or the devils, of which they were supposed to be incarnations, were to be conjured into him, but refer to him merely as their proctor and legal representative. The results of the prosecution, which had been awaited with intense and anxious interest by the people, were received with great joy, and the Bernese government ordered a full report of the proceedings to be made. The ecclesiastical anathema, however, proved to be _brutum fulmen_; nothing more came of it, says Schilling, “owing to our sins.” Another chronicler adds that God permitted the inger to remain as a plague and a punishment until the people repented of their wickedness and gave evidence of their love and gratitude to Him, namely, by giving to the Church tithes of what the insects had not destroyed.

The Swiss priest in his malediction declares that the inger were not in Noah’s ark and even denies that they are animals properly speaking, stigmatizing them as living corruption, products of spontaneous generation perhaps, or more probably creations of the devil. This position was assumed in order to escape the gross impropriety and glaring incongruity of having the Church of God curse the creatures which God had made and pronounced very good, and afterwards took pains to preserve from destruction by the deluge. This difficulty, always a serious one, was, as we have seen, one of the chief points urged by the counsel for the defence in favour of his clients.

Malleolus gives the following formula for banning serpents and expelling them from human habitations, inculcating incidentally the iniquity of perjury and judicial injustice: “By virtue of this ban and conjuration I command you to depart from this house and cause it to be as hateful and intolerable to you, as the man, who knowingly bears false witness or pronounces an unjust sentence, is to God.” Sometimes the exorcism was in the form of a prayer, as, for example, in that used for the purgation and disinfection of springs and water-courses: “O Lord Jesus, thou who didst bless the river Jordan and wast baptized in it and hast purified and cleansed it to the end that it might be a healing element for the redemption from sin, bless, sanctify and purify this water, so that there may be left in it nothing noxious, nothing pestiferous or contagious, nothing pernicious, but that everything in it may be pure and immaculate, in order that we may use whatever is created in it for our welfare and to thy glory, through our Lord Jesus Christ. Amen.”

In a Latin protocol of legal proceedings in Crollolanza’s _Storia del Contado di Chiavenna_ it is recorded that on June 26, 1659, Capt. J. B. Pestalozzi came, in behalf of the communes of Chiavenna, Mese, Gordona, Prada and Samolico, before the commissioner Hartmann Planta and brought complaint against certain caterpillars on account of the devastations committed by them, demanding that these hurtful creatures should be summoned by the proper sheriff to appear in court on June 28 at a specified hour in order to have a curator and defender appointed, who should answer for them to the plaintiffs. A second document, dated June 28, 1659, and signed by the notary Battista Visconti, certifies that the said summons had been duly issued and five copies of the same been posted each on a tree in the five forests in the territory of the aforesaid five communes. A third document of the same date required the advocate of the accused, Cesare de Peverello, to appear before the court on the following Tuesday, July 1, in behalf of his recusant clients, who were charged with trespassing upon the fields, gardens and orchards and doing great damage therein, instead of remaining in their habitat, the forest. The prosecutors required that they should seek their food in wild and wooded places and cease from ravaging cultivated grounds. A fourth document contains an account of the trial; the pleadings of the respective parties, so far as they are preserved, do not differ essentially from those already quoted. In the fifth and final document the court recognizes the right of the caterpillars to life, liberty, and the pursuit of happiness, provided the exercise of this right “does not destroy or impair the happiness of man, to whom all lower animals are subject.” Accordingly a definite place of abode is to be assigned to them and various places are proposed. The protocol is incomplete, so that we are left in ignorance of the ultimate decision. The whole is written in execrable Latin quite worthy of the subject.

More than half-a-century later the Franciscan friars of the cloister of St. Anthony in the province of Piedade no Maranhão, Brazil, were greatly annoyed by termites, which devoured their food, destroyed their furniture, and even threatened to undermine the walls of the monastery. Application was made to the bishop for an act of interdiction and excommunication, and the accused were summoned to appear before an ecclesiastical tribunal to give account of their conduct. The lawyer appointed to defend them urged the usual plea about their being God’s creatures and therefore entitled to sustenance, and made a good point in the form of an _argumentum ad monachum_ by praising the industry of his clients, the white ants, and declaring them to be in this respect far superior to their prosecutors, the Gray Friars. He also maintained that the termites were not guilty of criminal aggression, but were justified in appropriating the fruits of the fields by the right derived from priority of possession, inasmuch as they had occupied the land long before the monks came and encroached upon their domain. The trial lasted for some time and called forth remarkable displays of legal learning and forensic eloquence, with numerous citations of sacred and profane authorities on both sides, and ended in a compromise, by the terms of which the plaintiffs were obliged to provide a suitable reservation for the defendants, who were commanded to go thither and to remain henceforth within the prescribed limits. In the chronicles of the cloister it is recorded, under date of Jan. 1713, that no sooner was the order of the prelatic judge promulgated by being read officially before the hills of the termites than they all came out and marched in columns to the place assigned. The monkish annalist regards this prompt obedience as conclusive proof that the Almighty endorsed the decision of the court. [Cited by Emile Angel on the authority of Manoel Bernardes’ _Nova Floresta, ou Sylva de varios apophthegmas e ditos sentencios espirituaes e moraes_, etc. Vol. V., Lisboá, 1747.]

About the middle of the sixteenth century the inhabitants of several villages in Aargau were greatly annoyed by swarms of gadflies and petitioned the Bishop of Constance for relief. In the episcopal rescript, written and signed by the vidame Georg Winterstetter, the people are enjoined to abstain from dancing on Sundays and feast days, from all forms of libidinousness, gambling with cards or dice and other frivolities. These injunctions are followed by prayer and the usual formulas of conjuration and exorcism. The original document was written in Latin and preserved in the archives of Baden in Switzerland, but is now lost. In 1566 the Landamman of Unterwalden, Johannes Wirz, took a German translation of it home with him to be used in case of need against the “vergifteten Würmer,” and deposited it in the archives of Obwalden, where it still remains. It was published in 1898 by Dr. Merz.

In Protestant communities, the priest as exorcist has been superseded, to a considerable extent, by the professional conjurer, who in some portions of Europe is still employed to save crops from devouring insects and similar plagues. A curious instance of this kind is recorded in Görres’ _Historisch-Politische Blätter_ for 1845 (Heft VII. p. 516). A Protestant gentleman in Westphalia, whose garden was devastated by worms, after having tried divers vermicidal remedies in vain, resolved to have recourse to a conjurer. The wizard came and walked about among the vegetables, touching them with a wand and muttering enchantments. Some workmen, who were repairing the roof of a stable near by, made fun of this hocus-pocus and began to throw bits of lime at the conjurer. He requested them to desist, and finally said: “If you don’t leave me in peace, I shall send all the worms up on the roof.” This threat only excited the hilarity of the scoffers, who continued to ridicule and disturb him in his incantations. Thereupon he went to the nearest hedge, cut a number of twigs, each about a finger in length, and placed them against the wall of the stable. Soon the vermin began to abandon the plants and, crawling in countless numbers over the twigs and up the wall, took complete possession of the roof. In less than an hour the men were obliged to stop working and stood in the court below covered with confusion and cabbage-worms.

The writer, who relates this strange incident, fully believes that it actually occurred, and ascribes it to “the force of human faith and the magnetic power of a firm will over nature.” This, too, is the theory held by Paracelsus, who maintained that the effectiveness of a curse lay in the energy of the will, by which the wish, so to speak, concretes into a deed, just as anger directs the arm and actualizes itself in a blow. By “fervent desire” merely, without any physical effort or aggressive act, he deemed it possible to wound a man’s body or to pierce it through as with a sword. He also held that brutes are more easily exorcised or accursed than men, “for the spirit of man resists more than that of the brute.” Similar notions were entertained nearly a century later by Jacob Boehme, who defines magic as “doing in the spirit of the will,” an idea which finds more recent and more scientific expression in Schopenhauer’s doctrine of “the objectivation of the will.” Indeed, Schopenhauer’s postulate of the will as the sole energy and actuality in the universe is only the philosophic statement of an assumption, upon which magicians and medicine-men, enchanters, exorcists and anathematizers have acted more or less in all ages. We have a striking illustration of the workings of some such mysterious, quasi-hyperphysical force in hypnotism, the reality of which it is no longer possible to deny, however wonderful and incomprehensible its manifestations may appear.

It is natural that a religion of individual initiative and personal responsibility, like Protestantism, should put less confidence in theurgic machinery and formularies of ex-cathedral execration than a religion like Catholicism, in which man’s spiritual concerns are entrusted to a hierarchical corporation to be managed according to traditional and infallible methods. This tendency crops out in a decree published at Dresden, in 1559, by “Augustus Duke and Elector,” wherein he commends the “Christian zeal of the worthy and pious parson, Daniel Greysser,” for having “put under ban the sparrows, on account of their unceasing and extremely vexatious chatterings and scandalous unchastity during the sermon, to the hindrance of God’s word and of Christian devotion.” But the Saxon parson, unlike the Bishop of Trier, did not expect that his ban would cause the offending birds to avoid the church or to fall dead on entering it. He relied less on the directly coercive or withering action of the curse than on the human agencies, which he might thereby set at work for the accomplishment of his purpose. By his proscription he put the culprits out of the pale of public sympathy and protection and gave them over as a prey to the spoiler, who was persuaded that he was doing a pious work by exterminating them. It was solemnly enjoined upon the hunter and the fowler to lie in wait for the anathematized sparrows with guns and with snares (_durch mancherlei visirliche und listige Wege_); and the Elector issued his decree in order to enforce this duty on all good Christians. (See Appendix E.)

A faded and somewhat droll survival of ecclesiastical excommunication and exorcism is the custom, still prevailing in European countries and some portions of the United States, of serving a writ of ejectment on rats or simply sending them a friendly letter of advice in order to induce them to quit any house, in which their presence is deemed undesirable. Lest the rats should overlook and thus fail to read the epistle, it is rubbed with grease, so as to attract their attention, rolled up and thrust into their holes. Mr. William Wells Newell, in a paper on “Conjuring Rats,” printed in _The Journal of American Folk-Lore_ (Jan.-March, 1892), gives a specimen of such a letter, dated, “Maine, Oct. 31, 1888,” and addressed in business style to “Messrs. Rats and Co.” The writer begins by expressing his deep interest in the welfare of said rats as well as his fears lest they should find their winter quarters in No. 1, Seaview Street, uncomfortable and poorly supplied with suitable food, since it is only a summer residence and is also about to undergo repairs. He then suggests that they migrate to No. 6, Incubator Street, where they “can live snug and happy” in a splendid cellar well stored with vegetables of all kinds and can pass easily through a shed leading to a barn containing much grain. He concludes by stating that he will do them no harm if they heed his advice, otherwise he shall be forced to use “Rough on Rats.” This threat of resorting to rat poison in case of the refusal to accept his kind counsel is all that remains of the once formidable anathema of the Church.

In Scotland, when these domestic rodents became too troublesome, people of the lower classes are wont to post the following notice on the walls of their houses:

“Ratton and mouse,
Lea’ the puir woman’s house,
Gang awa’ owre by to ’e mill,
And there ane and a’ ye’ll get your fill.”

In order to make the conjuration effective some particular abode must be assigned to them; it is not sufficient to bid them begone, but they are to be told to go to a definite place. The fact that they are usually sent across a river or brook may indicate a lingering tradition of their demoniacal character, since, according to a widespread popular superstition, a water-course is a barrier to hobgoblins and evil spirits:

“A running stream they dare na cross.”

In this case the rats, as imps of Satan, having reached their destination, would find it impossible to return.