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Article Excerpt
While most contemporary Western legal systems treat animals as chattels to be acquired, controlled, and disposed of at their owners' pleasure, animals have historically been treated as partial legal persons to allow the legal system to respond to the unpredictable and sometimes fatal harms they cause.
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Punish the deed, not the breed" is the rallying cry for opponents of Ontario's Pit Bull Controls, regulations that came into effect at the end of August 2005 under the provincial Dog Owners' Liability Act. The legislation bans pit bulls and punishes owners of dangerous dogs that "bite, attack, or pose a threat to public safety" with hefty fines or even jail time (Ontario). "People want to be protected from the menace of these dangerous dogs," said Attorney General Michael Bryant. "Some of these dogs are nothing but a loaded weapon waiting to go off and so we are taking action to make our communities safer" (Ontario). What is not quite clear is who, or what, should be punished for the deed, and how. One somewhat cryptic suggestion is that "dogs who bite should be sited [sic] for dangerous behavior and not as a dangerous breed" (Better). The questions multiply exponentially: would the dog have to acknowledge the ticket with a pawprint, or would a noseprint do? Would the dog pay fines, or would community service do instead? How would a dog dispute a ticket in court? Could other dogs appear as character witnesses? While the imagination boggles, the citizens of Western Europe in the early modern period had no such difficulty. They were more than willing, as legal and social history shows, to hold animals criminally responsible for their behaviour.
On a Thursday in March in 1567, the royal notary of the court of Senlis in the Picardie region of France condemned a sow to be hung from a tree for murdering a four-month old infant. The judgment graphically describes how the infant girl was found killed and partially eaten ("devoree en la tete, main senestre et au dessus de la mamelle dextre") by a sow with a black muzzle. Compounding the tragedy was the fact that the victim's uncle and next-door neighbour owned the sow (Evans 356). Sixty years earlier, also in Picardie, a young pig had been convicted and sentenced for the similarly brutal murder of an infant. The pig was to be hung and strangled ("pendu et estrangle") from the fork of a tree right beside the local gallows. The pig had already been imprisoned for some time after the incident in the abbey of St. Martin de Laon awaiting trial (354).
For many, the notion of animals being tried, convicted, and sentenced to capital punishment for admittedly horrific acts evokes amused puzzlement, or "a series of lost Monty Python sketches" (Kastner). Some may shrug dismissively, drawing from these peculiar events the conclusion that our pre-Enlightenment relatives, while playing the game of law, were fundamentally irrational. In my view, however, the trials demonstrate unexpected ways of thinking about who or what the law acts upon. Without losing their status as property, animals were imbued with sufficient legal personhood to permit the law to act upon them as it would upon similarly-situated humans. Considering those ways may help us to develop novel and constructive perspectives on how our own law acts upon animals.
Most of the documented animal trials took place in the area of Western Europe that now encompasses France, Italy, Switzerland, and Germany, from the late mediaeval to early modern period. Legal scholars, historians, and theologians have documented animal trials taking place as late as the early twentieth century and as far afield as Brazil, Russia, and Canada. These animal trials were not simply overblown revenge rituals arising spontaneously from the collective desire for retribution and catharsis after a local tragedy. They were formal legal proceedings in which animals, either as individuals or groups, were put on trial. The trials are striking for their formal similarities, yet full of contradictions, "at once unimaginable and eminently imaginable" (Kastner).
There were, roughly speaking, two types of animal trials. In the first, individual domestic animals suspected of serious crimes (usually murder or serious bodily harm, but also bestiality) against humans were put on trial. Certainly, some of the most wretched crimes involved infanticidal pigs, but a substantial number of the trials involved canine, equine, or bovine accused. The animal defendants might be held in custody awaiting trial, often at significant expense to the state (Evans 143). They were accorded all procedural rights available to humans, including state-funded defence counsel, and were brought in person, so to speak, before the court, to satisfy their right to be heard (Kadri 157). After hearing witnesses, the court usually convicted the animal and sentenced it to capital punishment, but a finding of guilt was not a foregone conclusion. In 1750, a female donkey was acquitted of charges of bestiality after the local parish priest and several other inhabitants of the commune of Vanvres, now part of metropolitan Paris, attested to her virtue and good behaviour. No character witnesses appeared for her human co-accused, who was convicted and sentenced to death (Evans 150).
If a sentence was prescribed for humans convicted of a particular crime, an identical sentence was applied to the animal convict. Homicidal animals were usually hung (often inverted) or buried alive, while animals convicted of bestiality were burned alive (Evans 138-56; Cohen, Crossroads 85-98). For crimes short of homicide, the animal's life might be spared. In Austria in the late seventeenth century, a dog was incarcerated for a year in a public marketplace for biting a member of the local council in the leg (Evans 175).
More startling, if possible, are the trials in which collectivities of wild animals--rats, birds, snakes, insects--were called to ecclesiastical courts to answer for crop depredation and other anti-social behaviour. In 1545, the winegrowers of St. Julien in the Savoie region complained to the local ecclesiastical court about some weevils that had ravaged their vineyards (Evans 38). Presumably, the plaintiffs had to pay for their own counsel, but the weevils had both an agent and an advocate appointed for them. The court issued a proclamation recommending public prayers, repentance, contrition, three consecutive high masses, and "above all to pay tithes" (39). Scrupulous adherence to the programme solved the problem nicely, but several decades later, the weevils returned. This time, the wine-growers' representative beseeched the court to appoint a new agent and advocate for the weevils (the first two having died), to observe the damage done by the weevils, and to proceed to an excommunication (42).
Various defence arguments and adjournments ensued, such that the court case had not...
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