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.