State v. Fido

In 1750, in Vanvres, France, an unmarried couple was caught in flagrante delicto. Pursuant to the ecclesiastical law of the time, they were tried and convicted of fornication and sentenced to be hanged. The man, Jacques Ferron, went to the gallows, but community sentiment swelled on behalf of his partner. The townspeople swore an affidavit that they knew her to be “virtuous and well-behaved”, and the judge, moved by popular sentiment, pardoned her. Oh, and there’s one detail I left out: the female defendant was a donkey.

This story comes from one of easily the strangest, but also one of the most interesting, law books I’ve read recently: E.P. Evans’ The Criminal Prosecution and Capital Punishment of Animals. The monograph, originally published in 1906, is about just what its title suggests—the medieval and early modern practice of subjecting animals to criminal process. Evans catalogues numerous cases where the state brought criminal actions against pigs, cows, donkeys, vermin, and swarms of insects. The accused were typically jailed (in the company of human inmates), tried (complete with publicly appointed defense counsel), and if convicted, subjected to sanctions that ranged from a knock on the head to capital punishments (hanging at the gallows, burning at the stake, and even burial alive).

Evans makes no secret of his disdain for these practices, and it’s easy to read the volume as an example of the transition (of both criminal law and society’s treatment of animals) from the benighted medieval world to the humane and enlightened modern one. But for a few reasons, I think the real story is a bit more complicated.

The stories Evans relates might be taken to suggest that to the medieval mind, animals and humans alike possessed equivalent moral agency—after all, why punish in the absence of culpability? But a closer reading of the evidence suggests that this isn’t quite right. Scholastic philosophers—including Aquinas—wrestled with the conceptual issues raised by subjecting animals to penalties designed to regulate human society. Their solution relied on notions the modern mind would find familiar: an acknowledgment of animals’ limited sentience (after all, while not human neither are animals rocks or bacteria); and the need to incapacitate animals that placed humans in danger. And the notion of punishing animals is not entirely foreign in contemporary society, as anyone who has shouted “bad dog” at a miscreant pet can attest.

Nevertheless, something seems absurd and tragically unnecessary about the practice of publicly punishing animals for criminal acts (to say nothing of the practice of subjecting humans to the same treatment). If animals pose a danger to society and must be put down, fair enough, but why make a public spectacle of it? Evans locates this practice within the strikingly inhumane treatment of animals that prevailed in pre-modern Europe. There is certainly some evidence for this. The work of Robert Darnton and Mikhail Bakhtin on early modern popular culture each observe the prevalence of torturing animals as a form of entertainment during festivals. Darnton in particular notes the irony of this practice becoming particularly widespread during Enlightenment-era France.

Evans confidently asserts that animal treatment has improved since the illiberal practices that prevailed as recently as the early nineteenth century. But it’s worth pointing out that being subjected to criminal process wasn’t all bad for animals. Society’s greater sense of their agency entitled animals to legal process that occasionally resulted in clemency, such as the pardoned donkey in Ferron’s case or the French case of a sow and cow whose convictions of capital offenses were overturned on appeal. The idea that animals possess moral agency thus cuts in two directions. By contrast, the contemporary notion that animals are not persons under the law divests them entirely of any formal legal protections, save for those a local jurisdiction chooses to extent through anti-cruelty statutes. Modern state determinations that dangerous animals need to be put down are summary and unreviewable.

But things have to be better for animals nowadays, with at least a modicum of public-law protections, right? Probably, but it’s a closer call than Evans and others might assume. Many of the practices that prevailed in centuries past (publicly torturing animals as family entertainment, for example) wouldn’t wash today, thanks to both animal cruelty ordinances and public mores. But while we’ve grown squeamish about watching animals be tortured, we don’t seem to be particularly worried about the existence of the practice when it’s easily ignored. The onset of factory farming has probably enabled extreme animal suffering on a less visible but far more widespread scale than existed during the periods that Evans and others describe.

Despite this, though, I’d still guess that animals today are better off than they were in earlier eras, just as the quality of life for humans has seen massive progress since then. But while I loved reading the Evans monograph, I think there’s some danger in his assumption that the attitudes and practices it catalogs—however strange they may seem—are nothing more than absurd relics of long-gone, backward societies. These practices had thoughtful theoretical foundations based in the dominant ideas of the time and brought their own balance of social costs and benefits. And I suspect that in a few hundred years, legal historians may look at our own conceptual and practical approach to animal welfare (near-total denial of animals’ legal status, widespread toleration of extremely cruel farming techniques) with the same mixture of horror and amusement with which contemporary readers regard the practices described in Evans’ book.