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: