they now?" remarked the elder lawyer. "I've seen many an old horse that had a great deal more conscience than his master. And on general principles wouldn't it be far more just and humane to have the law deal with a vicious animal that had injured somebody than to leave its punishment to an irresponsible and arbitrary owner who might be guilty of extreme brutality?"
"If the punishment would do any good—yes!" agreed Tutt.
"Well, who knows?" meditated Mr. Tutt. "I wonder if it ever does any good? But anybody would have to agree that responsibility for one's acts should depend upon the degree of one's intelligence—and from that point of view many of our friends are really much less responsible than sheep."
"Which, as you so sagely point out, would, however be a poor reason for letting their families punish them in case they did wrong. Just think how such a privilege might be abused! If Uncle John didn't behave himself as his nephews thought proper they could simply set upon him and briskly beat him up."
"Yes, of course, the law even to-day recognizes the right to exercise physical discipline within the family. Even homicide is excusable, under
"That's a fine relic of barbarism!" remarked Tutt. "But the child soon passes through that dangerous zone and becomes entitled to be tried for his offenses by a jury of his peers; the animal never does."
"Well, an animal couldn't be tried by a jury of his peers, anyhow," said Mr. Tutt.
"I've seen juries that were more like nanny goats than men!" commentated Tutt. "I'd like to see some of our clients tried by juries of geese or woodchucks."
"The field of criminal responsibility is the No Man's Land of the law," mused Mr. Tutt. "Roughly, mental capacity to understand the nature of one's acts is the test, but it is applied arbitrarily in the case of human beings and a mere point of time is taken beyond which, irrespective of his actual intelligence, a man is held accountable for whatever he does. Of course that is theoretically unsound. The more intelligent a person is the more responsible he should be held to be and the higher the quality of conduct demanded of him by his fellows. Yet after twenty-one all are held equally responsible—unless they're actually insane. It isn't equity! In theory no man or animal should be subject to the power of discretionary punishment on the part of another—even his own father or master. I've often wondered what earthly right we have to make the animals work for us—to bind them to slavery when we denounce slavery as a crime. It would horrify us to see a human being put up and sold at auction. Yet we tear the families of animals apart, subject them to lives of toil, and kill them whenever we see fit. We say we do this because their intelligence is limited and they cannot exercise any discrimination in their conduct, that they are always in the zone of irresponsibility and so have no rights. But I've seen animals that were shrewder than men, and men who were vastly less intelligent than animals."
"Right-o!" assented Tutt. "Take Scraggs, for instance. He's no more responsible than a chipmunk."
"Nevertheless, the law has always been consistent," said Mr. Tutt, "and has never discriminated between animals any more than it has between men on the ground of varying degrees of intelligence. They used to try 'em all, big and little, wild and domesticated, mammals and invertebrates."
"Oh, come!" exclaimed Tutt. "I may not know much law, but—"
"Between 1120 and 1740 they prosecuted in France alone no less than ninety-two animals. The last one was a cow."
"A cow hasn't much intelligence," observed Tutt.
"And they tried fleas," added Mr. Tutt.
"They have a lot!" commented his junior partner. "I knew a flea once, who—"
"They had a regular form of procedure," continued Mr. Tutt, brushing the flea aside, "which was adhered to with the utmost technical accuracy. You could try an individual animal, either in person or by proxy, or you could try a whole family, swarm or herd. If a town was infested by rats, for example, they first assigned counsel—an advocate, he was called—and then the defendants were summoned three times publicly to appear. If they didn't show up on the third and last call they were tried in absentia, and if convicted were ordered out of the country before a certain date under penalty of being exorcised."
"What happened if they were exorcised?" asked Tutt curiously.
"It depended a good deal on the local power of Satan," answered the old lawyer dryly. "Sometimes they became even more prolific and destructive than they were before, and sometimes they promptly died. All the leeches were prosecuted at Lausanne in 1451. A few selected representatives were brought into court, tried, convicted and ordered to depart within a fixed period. Maybe they didn't fully grasp their obligations or perhaps were just acting contemptuously, but they didn't depart and so were promptly exorcised. Immediately they began to die off and before long there were none left in the country."
"I know some rats and mice I'd like to have exorcised," mused Tutt.
"At Autun in the fifteenth century the rats won their case," said Mr. Tutt.
"Who got 'em off?" asked Tutt.
"M. Chassensée, the advocate appointed to defend them. They had been a great nuisance and were ordered to appear in court. But none of them turned up. M. Chassensée therefore argued that a default should not be taken because all the rats had been summoned, and some were either so young or so old and decrepit that they needed more time. The court thereupon granted him an extension. However, they didn't arrive on the day set, and this time their lawyer claimed that they were under duress and restrained by bodily fear—of the townspeople's cats. That all these cats, therefore should first be bound over to keep the peace! The court admitted the reasonableness of this, but the townsfolk refused to be responsible for their cats and the judge dismissed the case!"
"What did Chassensée get out of it?" inquired Tutt.
"There is no record of who paid him or what was his fee."
"He was a pretty slick lawyer," observed Tutt. "Did they ever try birds?"
"Oh, yes!" answered Mr. Tutt. "They tried a cock at Basel in 1474—for the crime of laying an egg."
"Why was that a crime?" asked Tutt. "I should call it a tour de force."
"Be that as it may," said his partner, "from a cock's egg is hatched the cockatrice, or basilisk, the glance of whose eye turns the beholder to stone. Therefore they tried the cock, found him guilty and burned him and his egg together at the stake. That is why cocks don't lay eggs now."
"I'm glad to know that," said Tutt. "When did they give up trying animals?"
"Nearly two hundred years ago," answered Mr. Tutt. "But for some time after that they continued to try inanimate objects for causing injury to people. I've heard they tried one of the first locomotives that ran over a man and declared it forfeit to the crown as a deodand."
"I wonder if you couldn't get 'em to try Andrew," hazarded Tutt, "and maybe declare him forfeited to somebody as a deodand."
"Deodand means 'given to God,'" explained Mr. Tutt.
"Well, I'd give Andrew to God—if God would take him," declared Tutt devoutly.
"But who is Andrew?" asked Mr. Tutt.
"Andrew is a dog," said Tutt, "who bit one Tunnygate, and now the Grand Jury have indicted not the dog, as it is clear from your historical disquisition
