The Carolina or criminal code of the emperor Charles V., promulgated at the diet of Ratisbon in 1532, ordained that sodomy in all its forms and degrees should be punished with death by fire “according to common custom” (“so ein Mensch mit einem Viehe, Mann mit Mann, Weib mit Weib, Unkeuschheit treibet, die haben auch das Leben verwircket, und man soll sie der gemeinen Gewohnheit nach mit dem Feuer vom Leben zum Tode richten.” Art. 116.), but stipulated that, if for any reason the punishment of the sodomite should be mitigated, the same measure of mercy should be shown to the beast. This principle is reaffirmed by Benedict Carpzov in his Pratica Nova Rerum Criminalium (Wittenberg, 1635), in which he states that “if for any cause the sodomite shall be punished only with the sword, then the beast participant of his crime shall not be burned, but shall be struck dead and buried by the knacker or field-master (Caviller oder Feldmeister).” The bugger was also bound to compensate the owner for the loss of the animal, or, if he left no property, the value must be paid out of the public treasury. “If the criminal act was not fully consummated, then the human offender was publicly scourged and banished, and the animal, instead of being killed, was put away out of sight in order that no one might be scandalized thereby” [Jacobi Döpleri, Theatrum Poenarum Suppliciorum et Executionum Criminalium, oder Schau-Platz derer Leibes- und Lebens-Straffen, etc. Sondershausen, 1693, II. p. 151.]
All Christian legislation on this subject is simply an application and amplification of the Mosaic law as recorded in Exodus xxii. 19 and Leviticus xx. 13-16, just as the cruel persecutions and prosecutions for witchcraft in mediæval and modern times derive their authority and justification from the succinct and peremptory command: “Thou shalt not suffer a witch to live.” In the older criminal codes two kinds or degrees of sodomy are mentioned, gravius and gravissimum; the former being condemned in the thirteenth verse and the latter in the fifteenth and sixteenth verses of Leviticus. Döpler tells some strange stories of the results of the peccatum gravissimum; and the fact that a sober writer on jurisprudence could believe and seriously narrate such absurdities, furnishes a curious contribution to the history of human credulity.
It is rather odd that Christian law-givers should have adopted a Jewish code against sexual intercourse with beasts and then enlarged it so as to include the Jews themselves. The question was gravely discussed by jurists, whether cohabitation of a Christian with a Jewess or vice versa constitutes sodomy. Damhouder (Prax. Rer. Crim. c., 96, n. 48) is of the opinion that it does, and Nicolaus Boër (Decis., 136, n. 5) cites the case of a certain Johannes Alardus or Jean Alard, who kept a Jewess in his house in Paris and had several children by her; he was convicted of sodomy on account of this relation and burned, together with his paramour, “since coition with a Jewess is precisely the same as if a man should copulate with a dog” (Döpl., Theat., II. p. 157). Damhouder, in the work just cited, includes Turks and Saracens in the same category, “inasmuch as such persons in the eye of the law and our holy faith differ in no wise from beasts.”
But to resume the subject of the perpetration of felonious homicide by animals, on the 10th of January, 1457, a sow was convicted of “murder flagrantly committed on the person of Jehan Martin, aged five years, the son of Jehan Martin of Savigny,” and sentenced to be “hanged by the hind feet to a gallows-tree (a ung arbre esproné).” Her six sucklings, being found stained with blood, were included in the indictment as accomplices; but “in lack of any positive proof that they had assisted in mangling the deceased, they were restored to their owner, on condition that he should give bail for their appearance, should further evidence be forthcoming to prove their complicity in their mother’s crime.” Above three weeks later, on the 2nd of February, to wit “on the Friday after the feast of Our Lady the Virgin,” the sucklings were again brought before the court; and, as their owner, Jehan Bailly, openly repudiated them and refused to be answerable in any wise for their future good conduct, they were declared, as vacant property, forfeited to the noble damsel Katherine de Barnault, Lady of Savigny. This case is particularly interesting on account of the completeness with which the procès verbal has been preserved. (See [Appendix M].)
Sometimes a fine was imposed upon the owner of the offending animal, as was the case with Jehan Delalande and his wife, who were condemned, on the 18th of April, 1499, by the bailiff of the Abbey of Josaphat near Chartres, to pay a fine of eighteen francs and to be confined in prison until this sum should be paid, “on account of the murder of a child named Gilon, aged five and a half years or thereabouts, perpetrated by a porker, aged three months or thereabouts.” The pig was condemned to be “hanged and executed by justice.” The owners were punished because they were supposed to have been culpably negligent of the child, who had been confided to their care and keeping, and not because they had, in the eye of the law, any proprietary responsibility for the infanticidal animal. The mulct implied remissness on their part as guardians or foster-parents of the infant. In general, as we have seen, the owner of the blood-guilty beast was considered wholly blameless and sometimes even remunerated for his loss. (Vide [Appendix N].)
According to the laws of the Bogos, a pastoral and nominally Christian tribe of Northern Abyssinia, a bull, cow or any other animal which kills a man is put to death; the owner of the homicidal beast is not held in any wise responsible for its crime, nevertheless he practically incurs a somewhat heavy penalty by not receiving any compensation for the loss of his property. This exercise of justice is quite common among the tribes of Central Africa. In Montenegro, horses, oxen and pigs have been recently tried for homicide and put to death, unless the owner redeemed them by paying a ransom.
On the 14th of June, 1494, a young pig was arrested for having “strangled and defaced a young child in its cradle, the son of Jehan Lenfant, a cowherd on the fee-farm of Clermont, and of Gillon his wife,” and proceeded against “as justice and reason would desire and require.” Several witnesses were examined, who testified “on their oath and conscience” that “on the morning of Easter Day, as the father was guarding cattle and his wife Gillon was absent in the village of Dizy, the infant being left alone in its cradle, the said pig entered during the said time the said house and disfigured and ate the face and neck of the said child, which, in consequence of the bites and defacements inflicted by the said pig, departed this life (de ce siècle trépassa).” The sentence pronounced by the judge was as follows, “We, in detestation and horror of the said crime, and to the end that an example may be made and justice maintained, have said, judged, sentenced, pronounced and appointed, that the said porker, now detained as a prisoner and confined in the said abbey, shall be by the master of high works hanged and strangled on a gibbet of wood near and adjoinant to the gallows and high place of execution belonging to the said monks, being contiguous to their fee-farm of Avin.” The crime was committed “on the fee-farm of Clermont-lez-Montcornet, appertaining in all matters of high, mean and base justice to the monks of the order of Premonstrants,” and the prosecution was conducted by “Jehan Levoisier, licenciate in law, the grand mayor of the church and monastery of St. Martin de Laon of the order of Premonstrants and the aldermen of the same place.” The plaintiffs were the friars, who preferred charges against the pig and procured the evidence necessary to its conviction. (Vide [Appendix O].)
In 1394, a pig was hanged at Mortaign for having sacrilegiously eaten a consecrated wafer; and in a case of infanticide, it is expressly stated in the plaintiff’s declaration that the pig killed the child and ate of its flesh, “although it was Friday,” and this violation of the jejunium sextae, prescribed by the Church, was urged by the prosecuting attorney and accepted by the court as a serious aggravation of the porker’s offence.
Nothing would be easier than to multiply examples of this kind. Infanticidal swine were hanged in 1419 at Labergement-le-Duc, in 1420 at Brochon, in 1435 at Trochères, and in 1490 at Abbeville; the last-mentioned execution took place “under the auspices of the aldermanity and with the tolling of the bells.” It was evidently regarded as a very solemn affair. The records of mediæval courts, the chronicles of mediæval cloisters, and the archives of mediæval cities, especially such as were under episcopal sovereignty and governed by ecclesiastical law, are full of such cases. The capital punishment of a dumb animal for its crimes seems to us so irrational and absurd, that we can hardly believe that sane and sober men were ever guilty of such folly; yet the idea was quite familiar to our ancestors even in Shakespeare’s day, in the brilliant Elizabethan age of English literature, as is evident from a passage in Gratiano’s invective against Shylock:
“thy currish spirit
Govern’d a wolf, who, hang’d for human slaughter,
Even from the gallows did his fell soul fleet,
And, whilst thou lay’st in thy unhallow’d dam,
Infus’d itself in thee; for thy desires
Are wolfish, bloody, starv’d, and ravenous.”