In the covenant with Noah it was declared that human blood should be required not only “at the hand of man,” but also “at the hand of every beast;” and it was subsequently enacted, in accordance with this fundamental principle, that “if an ox gore a man or a woman that they die, then the ox shall be surely stoned, and his flesh shall not be eaten.” To eat a creature which had become the peer of man in blood-guiltiness and in judicial punishment, would savour of anthropophagy. This decision of Jewish law-givers as to the use of the flesh of otherwise edible animals condemned to death for crime has nearly always been followed. Thus when, in 1553, several swine were executed for child-murder at Frankfort on the Main, their carcasses, although doubtless as good pork as could be found in the shambles, were thrown into the river. Usually, however, they were buried under the gallows or in whatever spot was set apart for interring the dead bodies of human criminals. At Ghent, however, in 1578, after judicial sentence of death had been pronounced on a cow, she was slaughtered and her flesh sold as butcher’s meat, half of the proceeds of the sale being given as compensation to the injured party and the other half to the city treasury for distribution among the poor; but her head was struck off and stuck on a stake near the gallows, to indicate that she had been capitally punished. The thrifty Flemings did not permit the moral depravity to taint the material substance of the bovine culprit and impair the excellence of the beef.
On the other hand, the Law Faculty of the University of Leipsic decided that a cow, which had pushed a woman and thereby caused her death at Machern in Saxony, July 20, 1621, should be taken to a secluded and barren place and there killed and buried “unflayed.” In this case the flesh of the homicidal animal was not to be eaten nor the hide converted into leather. (_Vide_ Appendix S.)
In this connection it may be interesting to mention a decision of the Ecclesiastical Court (_geistlicher Convent_) of Berne, given in 1666 and recorded in Türler’s _Strafrechtliche Gutachten des geistlichen Konvents der Stadt Bern_ (_Zeitschrift für schweiz._ _Strafrecht_, Bd. III., Heft 5. Quoted by Tobler). An insane man was tried for murder and the prosecutor seems to have urged that the lack of moral responsibility did not suffice to relieve the accused of legal responsibility and to free him from punishment, citing as pertinent to the case the Mosaic law, which inflicted the death penalty on an ox for the like offence. On this point the court replied: “In the first place, that specifically Jewish law is not binding upon other governments, and is not observed by them either as regards oxen or horses. Again, even if the Jewish law should be really applicable to all men, it could not be appealed to in the present case, since it is not permissible to draw an inference _a bove ad hominem_. Inasmuch as no law is given to the ox, it cannot violate any, in other words, cannot sin and therefore cannot be punished. On the other hand, death is a severe penalty for man. Nevertheless if God commanded that the ‘goring ox’ should be killed, this was done in order to excite aversion to the deed, to prevent the animal from injuring others, and in this manner to punish the owner of the beast. This fact, however, proves nothing touching the case now before us; for, although God enacted a law for the ox, he did not enact any for the insane man, and the distinction between the goring ox and the maniac must be observed. An ox is created for man’s sake, and can therefore be killed for his sake; and in doing this there is no question of right or wrong as regards the ox; on the other hand, it is not permissible to kill a man, unless he has deserved death as a punishment.” The remarkable points in this decision are, first, the abrogation of a biblical enactment by an ecclesiastical court of the seventeenth century, and, secondly, the discussion of a criminal act from a psychiatrical point of view and the admission of extenuating and exculpating circumstances derived from this source.