The judicial prosecution of animals, resulting in their excommunication by the Church or their execution by the hangman, had its origin in the common superstition of the age, which has left such a tragical record of itself in the incredibly absurd and atrocious annals of witchcraft. The same ancient code that condemned a homicidal ox to be stoned, declared that a witch should not be suffered to live, and although the Jewish lawgiver may have regarded the former enactment chiefly as a police regulation designed to protect persons against unruly cattle, it was, like the decree of death against witches, genetically connected with the Hebrew cult and had therefore an essentially religious character. It was these two paragraphs of the Mosaic law that Christian tribunals in the Middle Ages were wont to adduce as their authority for prosecuting and punishing both classes of delinquents, although in the application of them they were undoubtedly incited by motives and influenced by fears wholly foreign to the mind of the Levitical legislator. The extension of Christianity beyond the boundaries of Judaism and the conversion of Gentile nations led to its gradual but radical transformation. The propagation of the new and aggressive faith among the Greeks and Romans, and especially among the Indo-Germanic tribes of Northern Europe, necessarily deposed, degraded and demonized the ancestral deities of the proselytes, who were taught henceforth to abjure the gods of their fathers and to denounce them as devils. Thus missionary zeal and success, while saving human souls from endless perdition, served also to enlarge the realm of the Prince of Darkness and to increase the number of his subjects and satellites. The new convert saw them with his mind’s eye skulking about in obscure places, haunting forest dells and mountain streams by day, approaching human habitations by night and waiting for opportunities to lure him back to the old worship or to take vengeance upon him for his recreancy. Every untoward event furnished an occasion for their intervention, which could be averted or repelled only by the benedictions, exorcisms or anathemas of the Church. The ecclesiastical authorities were therefore directly interested in encouraging this superstitious belief as one of the chief sources of their power, and it was for this reason that diabolical agencies were assumed to be at work in every maleficent force of nature and to be incarnate in every noxious creature. That this doctrine is still held and this policy still pursued by the bishops and other clergy of the Roman Catholic Church, no one familiar with the literature of the subject can deny.
Besides the manuals and rituals already cited, consult, for example, Die deutschen Bischöfe und der Aberglaube: Eine Denkschrift von Dr. Fr. Heinrich Reusch, Professor of Theology in the University of Bonn, who vigorously protests against the countenance given by the bishops to the crassest superstitions. For specimens of the literature condemned by the German professor, but approved by the prelates and the pope, see such periodicals as Monat-Rosen zu Ehren der Unbefleckten Gottes-Mutter Maria and Der Sendbote des göttlichen Herzens Jesu, published by Jesuits at Innsbruck in the Tyrol.
It is a curious fact that the most recent and most radical theories of juridical punishment, based upon anthropological, sociological and psychiatrical investigations, would seem to obscure and even to obliterate the line of distinction between man and beast, so far as their capacity for committing crime and their moral responsibility for their misdeeds are concerned. According to Lombroso there are i delinquenti nati fra gli animali, beasts which are born criminals and wilfully and wantonly injure others of their kind, violating with perversity and premeditation the laws of the society in which they live. Thus the modern criminologist recognizes the existence of the kind of malefactor characterized by Jocodus Damhouder, a Belgian jurist of the sixteenth century, as bestia laedens ex interna malitia; but although he might admit that the beast perpetrated the deed with malice aforethought and with the clear consciousness of wrong-doing, he would never think of bringing such a creature to trial or of applying to it the principle of retributive justice. This example illustrates the radical change which the theory of punishment has undergone in recent times and the far-reaching influence which it is beginning to exert upon penal legislation. In the second part of the present work the writer calls attention to this important revolution in the province of criminology, discussing as concisely as possible its essential features and indicating its general scope and practical tendencies, so far as they have been determined. It must be remembered, however, that, although the savage spirit of revenge, that eagerly demands blood for blood without the slightest consideration of the anatomical, physiological or psychological conditions upon which the commission of the specific act depends, has ceased to be the controlling factor in the enactment and execution of penal codes, the new system of jurisprudence, based upon more enlightened conceptions of human responsibility, is still in an inchoate state and very far from having worked out a satisfactory solution of the intricate problem of the origin and nature of crime and its proper penalty.
In 1386, an infanticidal sow was executed in the old Norman city of Falaise, and the scene was represented in fresco on the west wall of the Church of the Holy Trinity in that city. This curious painting no longer exists, and, so far as can be ascertained, has never been engraved. It has been frequently and quite fully described by different writers, and the frontispiece of the present volume is not a reproduction of the original picture, but a reconstruction of it according to these descriptions. It is taken from Arthur Mangin’s L’Homme et la Bête (Paris, 1872), of which all the illustrations are more or less fancy sketches. A full account of the trial and execution is given in the present volume.
The iconographic edition of Jocodus Damhouder’s Praxis Rerum Criminalium (Antverpiæ, 1562) contains at the beginning of each section an engraving representing the perpetration of the crimes about to be discussed. That at the head of the chapter entitled “De Damno Pecuario” is a lively picture of the injuries done by animals and rendering them liable to criminal process; it is reproduced facing page 161 of the present work.
The most important documents, from which our knowledge of these judicial proceedings is derived, are given in the [Appendix], together with a complete list of prosecutions and excommunications during the past ten centuries, so far as we have been able to discover any record of them.
The bibliography, although making no claim to be exhaustive, comprises the principal works on the subject. Articles and essays, which are merely a rehash of other publications, it has not been deemed necessary to mention. Such, for example, are “Criminalprocesse gegen Thiere,” in Miscellen aus der neuesten ausländischen Literatur (Jena, 1830, LXV. pp. 152-55), Jörgensen’s Nogle Frugter af mit Otium (Kopenhagen, 1834, pp. 216-23); Cretella’s “Gli Animali sotto Processo,” in Fanfulla della Domenica (Florence, 1891, No. 65), all three based upon the archival researches of Berriat-Saint-Prix and Ménabréa, and Soldan’s “La Personification des Animaux in Helvetia,” in Monatsschrift der Studentenverbindung Helvetia (VII. pp. 4-17), which is a mere restatement of Osenbrüggen’s theory.
In conclusion the author desires to express his sincere thanks to Dr. Laubmann, Director of the Munich Hof- und Staatsbibliothek, as well as to the other custodians of that library, for their uniform kindness and courtesy in placing at his disposal the printed and manuscript treasures committed to their keeping.