ceeding were also burned, in order to blot out the recollection of the atrocious act which had occasioned the prosecution. The records of law furnish examples of similar proceedings, unfortunately too numerous.

Boerius* cites two decrees of the Parliament of Bordeaux, in 1528, one in the case of Antoine Dumas, the other in the case of Guiot Vincenot. By each of these decrees, the man convicted of the crime was sentenced to be burned with the animal that had been his accomplice; the animal, however, received the favor which was denied to the principal offender, of being strangled before being led to the stake.

The Court of Toulouse directed a similar execution in a like case, according to Papon. This reporter relates yet another decision given by the Parliament of Paris, in 1601, and in execution of which a woman named Claude de Culan was hung, with her dog, and after death their bodies were delivered to the flames. Larocheflavint cites a decree of the Parliament of Toulouse, given in 1525, in a case of exactly the same kind. Bouchel|| cites one of the Parliament of Paris, dated Dec. 22, 1575. It relates to a she-ass, which, after being put to death, was burnt with a certain Jean Legaigneux. Other sentences may be found in Brillon, Boniface, ¶ Rousseaud de Lacombe.** The last author mentions one passed by the Parliament of Paris, Oct. 12, 1741. The philosophical spirit of the age, however, is apparent, in condemning only the guilty person to the punishment of fire. The animal was put to death, and cast into a ditch, which was afterwards covered with earth, ne ulla post patrati sceleris punitionem remanerent vestigia.

I ask pardon of M. Berriat-Saint-Prix, for having attempted to glean after him, and for not having brought forward any thing but what he would certainly have disdained. But I wished to show how much his learned researches had interested me; I wished also to embrace this opportunity to render him the homage of my respect and gratitude.

Accept, yourselves, gentlemen, the assurance of my consideration.

* N. Boerii Decisiones Burdegalenses, decisio 316, No. 6.
Recueil d'Arrêts notables, liv. 22, tit. 7.
Arrêts notables, liv. 3, tit. 2. arr. 1.
Dictionnaire des Arrêts.

V*****

Loco jam cit.

Recueil d'Arrêts notables, tome v. liv. 4. **Traité des Matières Criminelles, 1re partie, chap. 2, sect. 1, distinction Se.

P.S.-It is not astonishing, perhaps, to find prosecutions brought against animals by men who believed that animals had trials among themselves. Leonardus Lessius, a Jesuit,* wishing to exhibit all the enormity of the crime of adultery, maintains that it is held in horror even among animals, and produces as a proof of it the punishment which some storks inflicted on one of their number who was convicted of a breach of conjugal fidelity. He quotes an author who affirms that he was present at this execution:-Tempore meo (inquit Gulielmus Parisiensis, de Universo, parte 3, cap. 8, de Ciconiis) ciconia tanquam de adulterio convicta per olfactum masculi sui, congregatâ multitudine ciconiarum, nescio qualiter accusante masculo, vel detegente ejus crimen, a totâ illâ multitudine deplumata atque dilacerata est, tanquam consilio aut judicio ominium esset adulterii judicata.'

Note of the Editor of the Themis.

Having communicated M. V.'s letter to M. Berriat-SaintPrix, at the beginning of last April (1826), he has addressed the following note to us.

'I thank you the more for the communication of M. V.'s interesting letter, because I have within a few days (29th March) made a report to the Royal Society of Antiquaries, on prosecutions and judgments with regard to animals. I shall take advantage, at the second reading of the same report, of many of the researches of M. V*****, whom I shall take care to cite on this subject. I was directed to make this report on account of a communication made to the Society by M. Lejeune, de Meslay le Vidâme, (Eure-et-Loire) of two or three sentences given against animals. I have added a reference to all that the jurists, canonists, &c. have left us on the same subject, and lastly a chronological table of these processes, &c. The table and the report are to be inserted in the 8th volume of the Memoirs of the Society. The result is as follows.

1st. Prosecutions or judgments to the number of seventeen are pointed out, of which one belongs to the twelfth century, one to the fourteenth, eight to the fifteenth, twelve to the sixteenth, four to the seventeenth, and only one to the eighteenth.

* See his work De Justitia et Jure, cæterisque virtutibus cardinalibus, lib. 4, cap. 3, dubitatio, 10, n. 71.

2d. The animals to which they relate are-bull, cow, hog, sow, ass, mule, dog, beetle, rat, mole, field-mouse, snail, caterpillar, weevil, worm, bloodsucker.

'Accept, &c. 'Paris, April 8, 1826.'

BERRIAT-SAINT-PRIX.

ART. III.-JUDGE STORY'S ARGUMENT. Outlines prepared for an Argument to be delivered before the Board of Overseers of Harvard College, upon the Discussion of the Memorial of the Professors and Tutors of the College, claiming a right that none but resident Instructers in the College should be chosen or deemed Fellows' of the Corporation; the substance of which was spoken before the Board at their Meeting in January, 1825. By JOSEPH STORY, One of the Members of the Board.*

[IT will be at once perceived, that the argument is strictly confined to the mere question of legal right. The author, in

* The following statements, on the subject of the claim of the resident Instructers, are chiefly borrowed from a pamphlet published in 1825 entitled, 'Remarks on Changes lately proposed or adopted in Harvard University. By George Ticknor, Smith Professor, &c.'

.

The management of the College at Cambridge has been heretofore in the hands of three bodies of men, who hold their authority under an act of the General Court, passed in 1642; a charter given in 1650, with an appendix, dated in 1657; the fifth chapter of the Constitution of the Commonwealth, made in 1780, and revised but not altered in relation to the College, in 1821; and an act passed in February, 1814, by the Legislature of the Commonwealth.

The first of the bodies, who under the provisions of these acts, or by powers mediately derived from them, have had the management of the College, is, the Faculty or immediate Government, consisting of the President, and a part of the resident Instructers, amounting in all to from ten to thirteen persons, who have the entire discipline of the students in their hands, and have been obliged to meet together as an executive body, to decide on every punishment above a small fine; a body, which, both in Cambridge and in other Colleges, is too large for the prompt, consistent, and efficient discipline of such a collection of young men.

Over the Faculty is the Corporation, which derives its powers from the charter of 1650, the appendix of 1657, and the Constitution of 1780, and consists of the President, the Treasurer, and five Fellows' as they are technically called; and of the gentlemen who now [1825] compose that body, three, namely, Mr. W. Prescott, Judge Jackson, and the Rev. W. E. Channing, re

opening his speech, expressly disclaimed any intention to inquire into the expediency of such a choice, supposing it not a

side in Boston; one, Mr. Justice Story, resides in Salem; and one, Rev. E. Porter, resides in Roxbury. The Corporation have the management of the funds and revenues of the College; appoint its Instructers and other officers, and assign them their duties and pay; make laws for the government of the instructers and the students; and fill vacancies in their own body; but are restricted in their powers, and can do almost nothing without the expressed assent of the Overseers.

'The Overseers are the last and highest body for the government of the College. They hold their power by virtue of the act of 1642, the Constitution of 1780, and the statutes of [1810 &] 1814, and consist of the Governor of the Commonwealth, the Lieutenant Governor, the Council, the Senate, and the Speaker of the House of Representatives; in all fifty-three persons; together with the President of the college, and fifteen laymen and fifteen clergymen, elected, and to be elected, from the community at large, by the whole Board; so that out of eighty-four members of the upper Board for the government of the college, fifty-three are annually elected by the people, and, therefore, completely and truly represent the public interest in the institution.'

'On the second of April, 1824, eleven of the resident Teachers, viz. five Professors engaged in the instruction of undergraduates, two engaged in the instruction of graduates, and four Tutors, offered a memorial to the corporation,' containing certain statements and considerations relative to the mode in which, according to the charter of the institution, the corporation of the same ought of right to be constituted,' (Memorial, p. 1.) and preferring to the corporation as matter of chartered right,' the claim of the resident Instructers to be elected to vacancies in the Board of the President and Fellows.' (Mem. p. 31.) "To this memorial the Corporation returned no formal answer, on the ground, as has been stated by the memorialists, that if the claim were well founded, the members of the Corporation to whom it was sent, not being rightfully 'Fellows' of the college, were not competent to perform any act in its government; and could only resign their seats. On the first of June, nine of the same memorialists presented the same claim and memorial to the Overseers, giving as one reason for presenting it at that particular juncture, that they understood the Overseers were then engaged in considering important measures relative to the organization of the college. This memorial was by the Overseers referred to a committee, and so the matter rested for some months.'-Remarks, pp. 11, 12, 13.

'After this memorial had been presented to the Overseers, a report on it was made, January 6, 1825, by Mr. Hill of the Council, on behalf of the committee appointed to consider the subject, in which report it is maintained, that it is not necessary, by the charter or otherwise, that the Fellows of Harvard College be either resident in Cambridge, instructers, or stipendiaries. The memorialists desired to be heard in reply. They were so heard on the 4th of February; Professor Everett and Professor Norton appearing on their behalf. The discussion was very interesting, and one of the most thorough ever witnessed among us. It lasted three days. At the end of this time, the following resolutions were unanimously adopted at a remarkably full meeting of the Overseers. "Resolved, that it does not appear to this Board, that the resident instructers in Harvard University have any exclusive right to be elected members of the Corporation. Resolved, that it does not appear to the members of this Board, that the members of the Corporation forfeit their offices by not residing at college."

'It may be added to this, that, as a legal question, few have ever been examined among us with more laborious care, or by persons better qualified to decide what is the law. In the corporation, at the time, were Mr. W

matter of right, considering that to be a topic of a very large and comprehensive nature, and that no case was then before the Board, which required or invited such a discussion.]

Prescott, Mr. H. G. Otis, and Mr. J. Davis, District Judge of the United States. In the Board of Overseers, Mr. Justice Story, of the Supreme Court of the United States, delivered his opinion against the memorial in a long argument. He was succeeded, on the same side, by Chief Justice Parker, of the Supreme Court of Massachusetts, Mr. Justice Jackson, Mr. F. C. Gray, and some other persons of distinguished talent. On the final question, not a voice was raised in the Board, or elsewhere, I believe, in favor of the memorial. The profession, in particular, seemed unanimous on all the points; and many years will probably elapse before any important question will be decided with such a great weight of legal talent and learning, after so long, so patient, and so interesting a discussion.'-Remarks, pp. 25, 26.

"The charter of 1650, under which chiefly the corporation hold their powers, and the memorialists make their claim,' (Remarks, p. 13.) commences as follows:

'Whereas, through the good hand of God, many well devoted persons have been and daily are moved, and stirred up, to give and bestow, sundry gifts, legacies, lands, and revenues, for the advancement of all good literature, arts, and sciences, in Harvard College, in Cambridge, in the County of Middle-' sex, and to the maintenance of the President and Fellows, and for all accommodations of buildings, and all other necessary provisions, that may conduce to the education of the English and Indian youth of this country, in knowledge and godliness;

'It is therefore ordered and enacted by this Court, and the authority thereof, that for the furthering of so good a work, and for the purpose aforesaid, from henceforth, that the said college in Cambridge, in Middlesex, in New England, shall be a corporation, consisting of seven persons, viz. a President, five Fellows, and a Treasurer or Bursar; and that Henry Dunster shall be the first President, Samuel Mather, Samuel Danford, Masters of Arts, Jonathan Mitchell, Comfort Starr, and Samuel Eaton, shall be the five Fellows, and Thomas Danford to be present Treasurer, all of them being inhabitants in the Bay, and shall be the first seven persons of which the said corporation shall consist; and that the said seven persons or the greater number of them, procuring the presence of the Overseers [rendered unnecessary by the appendix of 1657,] of the College, and by their counsel and consent, shall have power, and are hereby authorized, at any time or times, to elect a new President, Fellows, or Treasurer, so oft and from time to time, as any of the said persons shall die or be removed, which said President and Fellows, for the time being, shall forever hereafter, in name and in fact, be one body politic and corporate in law to all intents and purposes; and shall have perpetual succession; and shall be called by the name of the President and Fellows of Harvard College, and shall from time to time be eligible as aforesaid.'-Mass. Col. Laws, &c. 78, 79.

Besides the Memorial, and the Remarks of Mr. Ticknor, several other pamphlets have been published in relation to the claim of the resident Instructers, viz. Remarks on a Pamphlet printed by the Professors and Tutors of Harvard University, touching their right to the exclusive government of that Seminary.' A Letter to John Lowell, Esq. in reply to a publication entitled, Remarks on a Pamphlet,' &c. This letter is from the Hon. Edward Everett, then a Professor in the college. Speech delivered before the Overseers of Harvard College, February 3, 1825, in behalf of the Resident Instructers of the College; with an Introduction. By Andrews Norton.' 'Report of a Committee of the Overseers of Harvard College on the Memorial of the Resident Instructers.' ED. JURIST.