Barbaros

Our Judaeo-Christian Heritage:

"From the later Middle Ages until the eighteenth century, certain peoples in Europe held the anthropomorphic notion that animals could commit crime. Indeed, those animals that were officially suspected of so doing were prosecuted for their misdeeds in secular courts and, if convicted, were subject to a variety of punishments, including public execution. It is very likely that this medieval belief in animal criminality originated in Judaeo-Christian biblical dictates deeply imbricated in both legal practice and popular culture. In medieval times, secular and ecclesiastical authorities interpreted literally the Hebrew injunction in Exodus that goring oxen should be stoned to death. Additional biblical support for the prosecution of offending animals was found to lie in the prescription in Genesis (ix, 5) that animals are accountable for the shedding of human blood, in the cursing of the serpent in the Garden of Eden ( Genesis , iii, 14-15), in David's cursing of the rocks and mountains of Gilboa (2 Samuel , i, 21), and elsewhere in the treatment of other recalcitrant inanimate objects (see Hyde 1916, p. 700, n. 17).

The overriding ontological context of animal trials in early medieval Europe stemmed from the belief that the cosmological universe was based on a rigid hierarchical chain of being. At the summit of this hierarchy was the male God of Judaeo-Christendom, followed by His earthly representatives and interpreters (Church and State), then by the multitiered social strata of feudalism, all of which in their respective positions in the human hierarchy sat atop the nonhuman animal kingdom in theirs ­ primates, quadrupeds, the "lower" animals and vermin, and vegetative and plant life. At the core of this religious tradition was the belief that, alone among all the animals, humans were made in the image and likeness of God, possessed free will, could be forgiven for their sins, and had the opportunity to join their Maker in the next world.

As the medieval period progressed from its early to its later stages, attempts were made squarely to confront the issue of the moral and legal responsibility of animals for their actions, though there is no solid evidence of a general belief that the volition and intent of animals was of the same order as those of humans. 3 The first prominent medieval theologian to examine the grounds on which animals might be prosecuted and punished for their misdeeds was the Italian scholar Thomas Aquinas (1225-1274) (Evans, 1906, pp. 53-55). He reasoned that if the lower animals are God's creatures and they are employed by Him for His purposes, then it would be blasphemy to curse them. If they are regarded merely as brutes, then a malediction (or legal curse) would be odious, vain, and unlawful. The only possible justification for trying and punishing animals, Aquinas argued, was that the guilty ones must be agents of Satan. The disposition of such cases, therefore, should not be seen as ending in the punishment of animals but in the hurling of them at the Devil, who makes use of irrational creatures to our detriment. While jurists did not believe that animals could, like humans, form the necessary legal intent to kill, it was held that the principle of the goring ox entailed that the absence of legal intent did not absolve animals from liability for having caused a wrongful death. Thus, in 1666 an ecclesiastical court in Berne held that "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" (quoted in Finkelstein, 1981, p. 70). Goring oxen were not to be executed because they were morally guilty but because, as lower animals who had killed higher animals, they threatened to turn upside down the divinely-ordained hierarchy of God's creation.

Knowledge of medieval animal trials was first secured for an English-language audience by the labors of the American author Edward Payson Evans (1831-1917), a member of that extinct Victorian species whose scholarly interests were seemingly encyclopedic and which, in his case, encompassed intellectual history, the study of languages, German literature, oriental studies, animal psychology and, surprisingly, animal rights, a subject which will require attention later.

In The Criminal Prosecution and Capital Punishment of Animals , Evans convincingly documents that the medieval belief in the criminal liability of animals was held both by secular and religious authorities, whose sometimes colliding worldviews nevertheless agreed on the need to prosecute certain animals in the medieval courtroom and, in deserving cases, to pronounce sentence upon them. Evans and we are ultimately indebted to Bartholomé Chassenée, a distinguished French jurist whose records of animal trials were published in 1531 and first popularised by Evans (1884a, 1884b, 1906; and see von Amira, 1891; Ives, 1914 pp. 247-266) in the late nineteenth century. Evans relates that Chassenée made his own reputation at the French bar as counsel for an unspecified number of rats, which were prosecuted in the ecclesiastical court of Autun for having feloniously eaten and wantonly destroyed local barley.

On complaint formally presented by the magistracy, the official or bishop's vicar, who exercised jurisdiction in such cases, cited the culprits to appear on a certain day and appointed Chassenée to defend them. In view of the bad repute and notorious guilt of his clients, Chassenée was forced to employ all sorts of legal shifts and chicane, dilatory pleas and other technical objections, hoping thereby to find some loophole in the meshes of the law through which the accused might escape, or at least to defer and mitigate the sentence of the judge. He urged ... that inasmuch as the defendants were dispersed over a large tract of country and dwelt in numerous villages, a single summons was insufficient to notify them all; he succeeded, therefore, in obtaining a second citation, to be published from the pulpits of all the parishes inhabited by the said rats. (Evans, 1906, pp. 18-19)

In this case, it is no joke that neither the judge's sentence nor whether the accused were put to the rack to extort a confession were recorded, although Chassenée's legal acumen and the eloquence of his plea established his fame as a criminal lawyer.

According to Evans, the sentencing of guilty animals rigidly adhered to contemporary legal precedent and established procedures. These latter included a reprimanding knock on the head, the curse of an anathema, excommunication or even, in the case of the larger quadrupeds such as pigs and bulls, capital punishment. Evans describes in great detail certain cases of the lex talionis (the law of retaliation) in which capital punishment was exercised by secular and ecclesiastical courts, among which a notorious example is provided by the public execution in 1386 of an infanticidal sow in the French city of Falaise. Having been duly tried in a court of law, presided over by a judge with counsel attending, the sow was dressed in human clothes, mutilated in the head and hind legs, and executed in the public square by an official hangman (" maître des hautes oeuvres ") on whom had been bestowed a pair of new gloves befitting the solemnity of the occasion (p. 140). Sometimes the condemned were even offered pardons or clemency. Evans (pp. 153-154; and see Westermarck, 1906, 1, p. 257) mentions how youth could be grounds for acquittal, as was so in the prosecution of a sow and her six piglets for having murdered and partly devoured a child. Here, the sow was sentenced to death, but the piglets were acquitted on account of their youth and their mother's bad example.

Evans records that in various parts of Europe between the ninth and the nineteenth centuries the prosecution of animals encompassed a great variety of major and minor crimes committed both by domestic and wild animals, and by insects and other "vermin." The original Notices of Indictment ­ some displayed by Evans ­ refer to crimes such as homicide committed by bees, bulls, horses and snakes; fraud by field-mice disguised as heretical clerics; infanticide by pigs; and theft by foxes. Moreover, Evans shows that judicial proceedings were instituted against a veritable Noah's Ark of creatures, including horseflies, Spanish flies and gadflies, beetles, grasshoppers, locusts, caterpillars, termites, weevils, bloodsuckers, snails, worms, rats, mice, moles, cows, 'bitches and she-asses,' horses, mules, bulls, pigs, oxen, goats, cocks, cockchafers, dogs, wolves, snakes, eels, dolphins and turtledoves.

Evans thus provided quite straightforward and detailed information about the range of crimes committed by animals and the precise species which were formally accused of them. However, from different parts of his book one can also reconstruct information about the periodicity of animal trials and their location.

Let us turn first, to the question of periodicity. Evans lists a total of 191 animal trials, each trial in his list containing brief entries about "sources of information", "types of animal", "places" and "dates" (1906, pp. 265-286). From the last of these entries it can be deduced that animal trials were concentrated in the 15th (36), 16th (57) and 17th (56) centuries. Without exception, the earliest cases involved the excommunication or exorcism of wild animals and, indeed, until the 13th century all cases cited by Evans refer to "vermin" like moles, locusts, serpents, flies, field-mice, caterpillars and eels. The year of the first trial listed by Evans is 824, when moles were excommunicated in the Valley of Aosta. Strictly speaking, this case was not an animal trial but part of an entirely different process that resulted in pronouncements of excommunication by an ecclesiastical court. 4 This said, the earliest authentic case of an animal trial cited by Evans is that of a pig in Fontenay-aux-Roses near Paris in 1266 (Finkelstein 1981, p. 67). Until the end of the sixteenth century, moreover, when for some reason such creatures fell out of vogue, pigs vastly outnumbered all other species of animal subjected to prosecution. The last case of an animal trial cited by Evans was in 1906 when, as reported in the New York Herald, a dog was tried in Délémont in Switzerland.

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Moreover, Evans illustrates how the European practice of taking legal proceedings against vermin was exported to the New World by the ecclesiastical courts. In a case of 1662 originally reported by Cotton Mather, in New Haven, Connecticut, animal trials intersected with accusations of bestiality. Here a pious wretch named Potter, aged about 60, was executed for "damnable Bestialities" with a cow, two heifers, three sheep and two sows, which were killed at the gallows before his eyes (Evans 1906, pp. 148-149). In another case, in the Brazilian province of Piedade no Maranhao , some Franciscan friars brought an action in 1713 against the ants "of the said territory, because the said ants did feloniously burrow beneath the foundation of the monastery and undermine the cellars of the said Bretheren, thereby weakening the walls of the said monastery and threatening its total ruin" (pp. 123-124; and see Frazer 1923, p. 410-411). Counsel were named for both plaintiffs and defense and, after learned arguments were provided by both sides, the judge, in a mood of wise conciliation, ruled that the Bretheren should appoint a neighborhood field suitable for habitation by the ants and that the latter "should shift their quarters to the new abode on pain of suffering the major excommunication" ( ibid .). But interesting as these cases are, we still do not know how extensive animal trials were in the New World." (Piers Beirne (1993). Inventing criminology: The rise of 'homo criminalis' . Albany, New York: SUNY Press).