“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.