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CHAPTER I

BUGS AND BEASTS BEFORE THE LAW

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.