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25 Ibid. pp. 4, 47 sqq.

26 Pertile, loc. cit. p. 148.

27 Cf. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 517 sqq.

28 Plutarch, Vita Solonis, 24. Xenophon, Historiæ Græcæ, ii. 4. 41.

29 Institutiones, iv. 9. Digesta, ix. 1.

30 Lex Salica (cod. i.), 36. Lex Ripuariorum, 46. Grimm, Deutsche Rechtsalterthümer, p. 664 sqq. Brunner, Forschungen, p. 513 sqq.

31 Ancient Laws of Ireland, i. 161; iv. 177, 179, 181. Welsh Laws, iv. i. 17 (Ancient Laws and Institutes of Wales, p. 391).

32 Macieiowski, Slavische Rechtsgeschichte, iv. 333.

33 See Lex Wisigothorum, viii. 4. 20; Schwabenspiegel, Landrechtbuch, 204; Dirksen, Civilistische Abhandlungen, i. 104; von Jhering, Geist des römischen Rechts, i. 123; Hepp, Die Zurechnung auf dem Gebiete des Civilrechts, p. 103; Grimm, Deutsche Rechtsalterthümer, p. 664; Brunner, Deutsche Rechtsgeschichte, ii. 556; Idem, Forschungen, p. 513.

34 Welsh Laws, iv. 1. 17 (Ancient Laws and Institutes of Wales, p. 391).

There has been considerable diversity of opinion concerning the purpose of inflicting punishments upon animals. Some writers suggest that it was possibly done with a view to deterring other animals from committing similar injuries.35 According to others, the animal was executed in order that the hateful act should be forgotten; Gratian, referring to St. Augustine,36 says, “Non propter culpam, sed propter memoriam facti pecus occiditur, ad quod mulier accesserit.”37 A theory which has gained much adherence explains the punishment as a symbolic act, performed for the purpose of inspiring horror of the crime into the minds of men.38 M. Thonissen maintains that, at Athens, “on frappait l’animal auteur d’un homicide, afin que le peuple, en voyant périr un être privé de raison, conçut une grande horreur pour l’effusion du sang humain.”39 It has also been supposed that the animal was punished with intention to intimidate those who were responsible for its acts,40 or that it was killed because it was dangerous.41 But the true solution of the problem seems simple enough. The animal had to suffer on account of the indignation it aroused. It was regarded as responsible for its deed.42 In early records the punishment is frequently spoken of as an act of “justice”;43 and the protests of Beaumanoir and others against this opinion44 only show that it was held in good earnest, if not by all, at least by many. From certain details we can also see how closely the responsibility ascribed to animals resembled the responsibility of men. In some of the texts of the Salic law the animal is spoken of as “auctor criminis.”45 In an ancient Irish law-tract it is said that, when a bee has blinded a person’s eye, the whole hive “shall pay the fine,” and “the many become accountable for the crime of one, although they all have not attacked.”46 Youth was a ground for acquittal, as appears from a case which occurred at Lavegny in 1457, when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child: whilst the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother.47 In Burgundy, a distinction was made between a mischievous dog that entered a room through an open door and one that committed a burglary; the latter was a larron, and was to be punished as such.48 The repetition of a crime aggravated the punishment;49 and the animal “principal” was punished more severely than the “accessories.50

35 Leibniz, Essais de Theodicée, p. 182 sq. Lessona, quoted by d’Addosio, Bestie delinquenti, p. 145.

36 St. Augustine, Quæstiones in Leviticum, 74 (ad Lev. xx. 16): “Nam pecora inde credendum est jussa interfici, quia tali flagitio contaminata, indignam refricant facti memoriam” (Migne, Patrologiæ cursus, xxxiv. 709).

37 Gratian, Decretum, ii. 15. 1. 4. Cf. Mishna, fol. 54, quoted by Rabbinowicz, Législation criminelle du Talmud, p. 116.

38 Ayrault, Des procès faicts au cadaver, aux cendres, à la mémoire, aux bestes brutes, fol. 24. Ortolan, Éléments du droit pénal, p. 188. Tissot, Le droit pénal, i. 19 sq.

39 Thonissen, Le droit pénal de la république Athénienne, p. 414.

40 Du Boys, quoted by d’Addosio, op. cit. p. 139.

41 Lessona, quoted ibid. p. 145.

42 Cf. Post, Die Grundlagen des Rechts, p. 359; Friedrichs, ‘Mensch und Person,’ in Das Ausland, 1891, pp. 300, 315; and, especially, d’Addosio, op. cit. p. 146 sqq.: “Nel medioevo si punì l'animale perchè lo si ritenne in certo modo conscio delle sue azioni, in certo modo libero, in certo modo responsabile.”

43 von Amira. op. cit. p. 9.

44 Beaumanoir, Les coutumes du Beauvoisis, lxix. 6, vol. ii. 485 sq. Chambers, op. cit. i. 127. Lichtenberg, Vermischte Schriften, iv. 481.

45 Lex Salica, edited by Hessels, coll. 209–212, 215.

46 Ancient Laws of Ireland, iv. 179.

47 Chambers, op. cit. i. 128.

48 Ancien Coutumier de Bourgogne, 23 (Revue historique de droit français et étranger, iii. 549): “Il deust hauoir faire justice del larron.”

49 Pertile, loc. cit. p. 148: “La Carta de Logu d’Eleonora giudicessa d’Arborea (1395) prescrive: che venendo trovato un asino in danno sui fondi altrui, per la prima volta gli si tagli un orecchio; la seconda, l’altro; e la terza, si confischi la bestia consegnandola alla corte principesca.” Cf. Vendîdâd, xiii. 32 sqq.

50 d’Addosio, op. cit. p. 16.

Considering the feelings to which even the cultured mind is susceptible with reference to a mischievous beast, it is not difficult to understand the attitude of the ignorant. The savage, not only momentarily, while in a rage, but permanently and in cold blood, obliterates the boundaries between man and beast. He regards all animals as practically on a footing of equality with man. He believes that they are endowed with feelings and intelligence like men, that they are united into families and tribes like men, that they have various languages like human tribes, that they possess souls which survive the death of the bodies just as is the case with human souls. He tells of animals that have been the ancestors of men, of men that have become animals, of marriages that take place between men and beasts. He also believes that he who slays an animal will be exposed to the vengeance either of its disembodied spirit, or of all the other animals of the same species which, quite after human fashion, are bound to resent the injury done to one of their number.51 Is it not natural, then, that the savage should give like for like? If it is the duty of animals to take vengeance upon men, is it not equally the duty of men to take vengeance upon animals?

51 Tylor, Primitive Culture, i. 467 sqq. Frazer, Golden Bough, ii. 389 sqq. Liebrecht, Zur Volkskunde, p. 17. Achelis, Moderne Völkerkunde, p. 373 sqq. Idem, ‘Animal Worship,’ in Open Court, xi. 705 sq. Waitz, Anthropologie der Naturvölker, ii. 180 (Negroes). von den Steinen, Unter den Naturvölkern Zentral-Brasiliens, p. 351. Im Thurn, Among the Indians of Guiana, p. 350 sqq. Dorman, Origin of Primitive Superstitions, pp. 223, 253. Lumholtz, Unknown Mexico, i. 331 (Tarahumares). Mooney, ‘Myths of the Cherokee,’ in Ann. Rep. Bur. Ethn. xix. pp. 250, 261 sq. Nelson, ‘Eskimo about Bering Strait,’ ibid. xviii. 423. Hose and McDougall, ‘Relations between Men and Animals in Sarawak,’ in Jour. Anthr. Inst. xxxi. 173 sqq., especially p. 205 sq.

Nor are these beliefs restricted to savages. Muhammedans maintain, not only that animals will share with men the general resurrection, but that they will be judged according to their works. Their tradition says that God “will raise up animals at the last day to receive reward and to show His perfection and His justice. Then the hornless goat will be revenged on the horned one.”52 We can hardly wonder that the Zoroastrian law inflicted punishments on dogs which hurt men or animals, when we read in the Vendîdâd that a dog has the characters of eight sorts of people.53 The fable and the Märchen for a long time related in good earnest their stories of animals that behaved exactly like men.54 Even to this day, in certain districts of Europe, as soon as a peasant is dead, it is customary for his heir to announce the change of ownership to every beast in the stall, and to the bees also;55 and in some parts of Poland, when the corpse of the rustic proprietor is being carried out, all his cattle are let loose, that they may take leave of their old master.56 In the Middle Ages animals were sometimes accepted as witnesses; a man who was accused of having committed a murder in his house appeared before the tribunal with his cat, his dog, and his cock, swore in their presence that he was innocent, and was acquitted.57 It was not only the common people that ascribed intelligence to beasts. According to Porphyry, all the philosophers who have endeavoured to discover the truth concerning animals have acknowledged that they to a certain extent participate of reason;58 and the same idea is expressed by Christian writers of a much later date. In the sixteenth century, Benoît wrote that animals often speak.59 In the middle of the following century, Hieronymus Rorarius published a book entitled ‘Quod animalia bruta ratione utantur melius homine.’ And about the same time Johann Crell, in his ‘Ethica Christiana,’ expressed the opinion that animals at all events possess faculties analogous to reason and free-will, that they have something similar to virtues and vices, that they deserve something like rewards and punishments, and are consequently punished by God and man.60 This, as it seems to me, is the correct explanation of the mediæval practice of punishing animals, even though, in some cases, as M. Ménabréa observes, the obnoxious animal was regarded as an embodiment of some evil spirit and was punished as such.61 The beast or insect was retaliated upon for the simple reason that it was regarded as a rational being.

52 Koran, vi. 38. Sell, Faith of Islám, p. 223.

53 Vendîdâd, xiii. 44 sqq.

54 See Grimm, Reinhart Fuchs, p. i. sqq.

55 Ralston, Songs of the Russian People, p. 315. Wuttke, Der deutsche Volksaberglaube der Gegenwart, p. 428.

56 Ralston, op. cit. p. 318.

57 Michelet, Origines du droit français, pp. 76, 279 sq. Chambers, op. cit. i. 129.

58 Porphyry, De abstinentia ab esu animalium, iii. 6.

59 Benoît, quoted by d’Addosio, op. cit. p. 214.

60 Crell, Ethica Christiana, ii. 1, p. 65 sq.:—“Hinc aliquid etiam virtuti et vitio simile, seu recte et prave factum: quorum illud est, cum bruta naturæ suæ ductum sequuntur, hoc cum a naturali via exorbitant. Unde tandem etiam aliquid præmio aut pœnæ, et huic quidem maxime simile. Unde bestias etiam a Deo punitas, aut pœnas certas lege illis constitutas, cernimus.”

61 Ménabréa, De l’origine de la forme et de l’esprit des jugements rendus au moyen-age contre les animaux, p. 35.

At the earlier stages of civilisation even inanimate things are treated as if they were responsible agents. The Kukis take revenge not only on a murderous tiger, but on a murderous tree. “If a man should happen to be killed, by an accidental fall from a tree, all his relations assemble, and cut it down; and however large it may be, they reduce it to chips, which they scatter in the winds, for having, as they say, been the cause of the death of their brother.”62 Among the aborigines of Western Victoria, “when the spear or weapon of an enemy has killed a friend, it is always burnt by the relatives of the deceased; but those captured in battle are kept, and used by the conquerors.”63 The North American Redskins, when struck with an arrow in battle, “will tear it from the wound, break and bite it with their teeth, and dash it on the ground.”64 The British Guiana Indian, when hurt either by falling on a rock, or by the rock falling on him, “attributes the blame, by a line of argument still not uncommon in more civilised life, to the rock.”65 The gods of the Vedic age cursed the trees which had injured them.66 Xerxes commanded that the Hellespont should be stricken with three hundred lashes,67 and Cyrus “wreaked his vengeance” on the river Gyndes by dispersing it through three hundred and sixty channels.68 Pausanias relates that when Theagenes had died, one of his enemies went up to his statue every night, and whipped the brass. At last, however, “the statue checked his insolence by falling on him; but the sons of the deceased prosecuted the statue for murder. The Thasians sank the statue in the sea, herein following the view taken by Draco, who, in the laws touching homicide which he drew up for the Athenians, enacted that even lifeless things should be banished if they fell on anybody and killed him.”69 As Dr. Frazer remarks, the punishment of inanimate objects for having accidentally been the cause of death was probably much older than Draco.70 At Athens there was a special tribunal for the purpose.71 Demosthenes states that, if a stone or a piece of wood or iron or any such thing fell and struck a man, and the person who threw the thing was not known, but the people knew, and were in possession of, the object which killed the man, that object was brought to trial at the court of the Prytaneum.72 Plato lays down the following rule in his ‘Laws’:—“If any lifeless thing deprive a man of life, except in the case of a thunderbolt or other fatal dart sent from the gods—whether a man is killed by lifeless objects falling upon him, or by his falling upon them, the nearest of kin shall appoint the nearest neighbour to be a judge, and thereby acquit himself and the whole family of guilt. And he shall cast forth the guilty thing beyond the border.”73 Teutonic law, which still recognised the principle of private revenge, treated the inanimate murderer with less ceremony.74 According to the Laws of Alfred, when men were at work together in a forest, and by misadventure one let a tree fall on another, which killed him, the tree belonged to the dead man’s kinsfolk if they took it away within thirty days.75 Later on, in England, a thing by which death was caused was “forfeited to God, that is to the King, God’s Lieutenant on earth, to be distributed in works of charity for the appeasing of God’s wrath.”76 This law remained in force till 1846.77

62 Macrae, in Asiatick Researches, vii. 189 sq.

63 Dawson, Australian Aborigines, p. 53.

64 Robertson, History of America, i. 351 sq.

65 Im Thurn, op. cit. p. 354.

66 Oldenberg, Religion des Veda, p. 518.

67 Herodotus, vii. 35.

68 Ibid. i. 190.

69 Pausanias, vi. 11. 6. Cf. ibid. v. 27. 10.

70 Frazer, Pausanias, ii. 371.

71 Aristotle, De republica Atheniensium, 57. Pausanias, i. 28. 10.

72 Demosthenes, Contra Aristocratem, 76, p. 645.

73 Plato, Leges, ix. 873 sq.

74 See Trummer, Vorträge über Tortur, &c. i. 376 sq. Brunner, Forschungen, p. 521 sqq.

75 Laws of Alfred, ii. 13.

76 Coke. Third Part of the Institutes of the Laws of England, p. 57.

77 Stephen, History of the Criminal Law of England, iii. 78. Pollock and Maitland, History of English Law before the Time of Edward I. ii. 473.

In some of these cases superstitious dread may have been a motive for destroying or banishing the instrument of death. There are facts which prove that such an object is looked upon as a source of danger. According to the Ripuarian law, people are forbidden to make use of a thing which has been “auctor interfectionis”;78 and in Norway, in quite modern times, sickles, axes, and other objects with which men have been killed, have been seen lying about abandoned and unused.79 Again, among the aborigines of West Australia, if a person has been killed by a thrust of the native wooden spear, ghici, his country-men think that his soul remains in the point of the weapon which caused his death, and they burn it after his burial, so that the soul may depart.80 But it is also obvious that an inanimate thing which is the cause of a hurt is apt to evoke a genuine feeling of resentment. We kick the chair over which we stumble, we curse the stone which hurts us; Dr. Nansen says that, when he was crossing Greenland, it would have caused him “quite real satisfaction” to destroy a sledge which was “heavy to draw.”81 When we thus behave as if the offending object were capable of feeling our resentment, we for a moment vaguely believe that it is alive.82 But our anger very soon passes away when we realise the true nature of its object. The case is different with men at earlier stages of civilisation. They do not suppose that things which hurt them are senseless; on the contrary, they personify such things, not only hastily and momentarily, but deliberately and permanently; hence their resentment lasts. The Guiana Indian, says Sir E. F. Im Thurn, “attributes any calamity which may happen to him to the intention of the immediate instrument of its infliction, and he not unnaturally sees in the action of this instrument evidence of its possession of a spirit.”83 Trees, especially, are very commonly supposed to possess souls similar to those of men, and are treated accordingly.84 Pausanias writes that “lifeless things are said to have inflicted of their own accord a righteous punishment on men”; and as the best and most famous instance of this he mentions the sword of Cambyses.85 In England the inanimate murderer was to be given up to the kinsmen of the slain surely not as a compensation for the loss they had suffered, but as an object upon which their vengeance was to be wreaked.86 It was called la bane, that is, “the slayer”; Bracton also calls it the “malefactor.”87 It did not matter that its owner was recognised as innocent; the punishment was not intended for him.88 But in some well-defined cases the “slayer” was free from guilt. A ship or other vessel from which a person was drowned by misfortune was not forfeited as deodand in case the accident happened in salt water—as Coke indicates, on account of the great dangers to which the vessel is exposed “upon the raging waves in respect of the wind and tempest.”89 Moreover, if a boy under fourteen fell from a cart, or from a horse, it was no deodand, “because he was not of discretion to look to himself,” and so the cart, or horse, could not be regarded as blamable. But if a cart ran over a boy, or a tree fell upon him, or a bull gored him, it was deodand, because, apparently, it went out of its way to kill him.90 The fact of motion was one of considerable importance in the case of animals and inanimate things, as it was in the case of men. Thus Bracton would distinguish between the horse which throws a man and the horse off which a man tumbles, between the tree that falls and the tree against which a man is thrown; and, as a general rule, a thing was not a deodand unless it could be said “movere ad mortem.”91 If anybody was drowned by falling from a ship under sail, not only the ship itself but the things moving in it were deemed the cause of his death; whereas the merchandise lying at the bottom of the vessel was not presumed to be guilty, and consequently was not forfeited.92 But if any particular merchandise fell upon a person and caused his death, that merchandise became a deodand, and not the ship.93 As Mr. Holmes observes, a ship is the most persistent example of motion giving personality to a thing. “She” is still personified not only in common parlance, but in courts of justice. In maritime cases of quite recent date judges of great repute have pronounced the proceeding to be, not against the owner, but “against the vessel for an offence committed by the vessel.”94

78 Lex Ripuariorum, lxx. 1.

79 Liebrccht, Zur Volkskund, p. 313.