[23] Desmaze, Les pénalités anciennes, p. 31 sq.
[24] This is the opinion of von Amira, who, however—as it seems to me, without sufficient evidence—suggests that the maledictions did not refer to ordinary animals, but to human souls or devils in disguise (Thierstrafen, p. 16 sqq.).
It has been suggested that the mediæval practice of punishing animals after human fashion was derived from the Mosaic law.[25] But this hypothesis does not account for the comparatively late appearance of the practice, nor for the fact that, in some cases, other punishments short of death were inflicted upon offending beasts.[26] It seems much more probable that the procedure in question developed out of an ancient European custom, to which it stood in the relationship of punishment to revenge.[27] According to the customs or laws of various so-called Aryan peoples—Greeks,[28] Romans,[29] Teutons,[30] Celts,[31] Slavs,[32]—an animal which did some serious damage, especially if it caused the death of a man, was to be given up to the injured party, or his family, obviously in order that it might be retaliated upon.[33] According to the Welsh Laws, “that is the only case in which the murderer is to be given up for his deed.”[34] The fact that afterwards, in the later Middle Ages, this form of reprisal was in certain instances transformed into regular punishment, only implies that the principle according to which punishment succeeded vengeance in the case of human crimes was, by way of analogy, extended to injuries committed by animals.
[25] Ibid. pp. 4, 47 sqq.
[26] Pertile, loc. cit. p. 148.
[27] Cf. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 517 sqq.
[28] Plutarch, Vita Solonis, 24. Xenophon, Historiæ Græcæ, ii. 4. 41.
[29] Institutiones, iv. 9. Digesta, ix. 1.
[30] Lex Salica (cod. i.), 36. Lex Ripuariorum, 46. Grimm, Deutsche Rechtsalterthümer, p. 664 sqq. Brunner, Forschungen, p. 513 sqq.
[31] Ancient Laws of Ireland, i. 161; iv. 177, 179, 181. Welsh Laws, iv. i. 17 (Ancient Laws and Institutes of Wales, p. 391).