The donkey that was saved from the hangman
The criminal prosecution and capital punishment of animals
Jacques Ferron got caught having sex with a female donkey.
In Canada today, this activity is prohibited by Section 160(1) of the Criminal Code and carries a maximum penalty of 10 years in prison. If committed in the presence of a child, the maximum sentence goes to 14 years (with a mandatory minimum of at least six months).
Bestiality charges are rare in Canada but not unheard of. From 2011 to 2020, 185 instances of bestiality were reported to police. For reasons that I don’t understand, this kind of criminal sexual activity is most popular in Manitoba, which has a reported bestiality rate almost three times the national average.
But Jacques Ferron did not live in Canada in 2022. He lived in France in 1750. The punishment for bestiality was death – for both the human and animal participants in the act of copulation. When Ferron appeared in court to face judgement, alongside of him was the donkey. Both faced the real prospect of being hanged. Fortunately for the poor donkey, she had friends and supporters. In his definitive book on animals facing criminal charges, Edward Evans reports that:
after due process of law, sentenced to death, the animal was acquitted on the ground that she was the victim of violence and had not participated in her master's crime of her own free-will. The prior of the convent, who also performed the duties of parish priest, and the principal in- habitants of the commune of Vanvres signed a certificate stating that they had known the said she-ass for four years, and that she had always shown herself to be virtuous and well-behaved both at home and abroad and had never given occasion of scandal to any one, and that therefore “they were willing to bear witness that she is in word and deed and in all her habits of life a most honest creature."
In short, Ferron got hanged but his rape victim was spared the noose after being accused of promiscuity. Justice was served.
You will note that when I quoted Evans, I identified him as the author of the definitive book on animals facing criminal charges. Does it strike you as odd that such a book exists?
The Criminal Prosecution and Capital Punishment of Animals
Today we find the idea of launching criminal prosecutions of animals (in human courts) a bit bizarre. It was not always thus. For several hundred years, animals faced criminal trials and punishment for bad behavior. They were dragged into court by bailiffs, faced real judges, were represented by court-appointed lawyers and were executed by professional executioners. Before being hanged, a convicted animal would often be dressed in human clothing. Their corpses would be left hanging in public to serve as a deterrent and warning to other animals that might be considering criminal activity.
I’m not making this up.
The first documented case of animals being subjected to the not-so-tender mercies of the human justice system came in 1257 when a pig was convicted and executed for homicide. Or should it have been called hamicide? This kind of trial became quite common; in centuries past, pigs seem to have been a dangerous bunch; perhaps it was anger at their impending fate as human supper. In any event, homicidal pigs were tried for murder. Upon conviction, they were dressed in human clothes and hanged – usually upside down. The pig’s owners often argued their animal was innocent, perhaps influence by the fact that executed pigs could not be eaten.
The legal arguments could get complicated. For example, according to Evans, in 1457 a sow was convicted of "murder flagrantly committed on the person of Jehan Martin, aged five years, the son of Jehan Martin of Savigny," and sentenced to be "hanged by the hind feet to a gallows-tree”. The fate of the murderous sow as pre-ordained. Witnesses reported seeing her attack the unfortunate young boy. More contentious was the fate of the sow’s six piglets. They were present when the fatal attack occurred and were covered in blood. This circumstantial and forensic evidence was offset by the fact that witnesses had not seen the piglets joining in the attack. It was decided insufficient evidence existed to convict the piglets for murder. The authorities attempted to return the piglets to their owner, one Jehan Baillie, but demanded he post bail in case evidence emerged the piglets were accessories to their mother’s crime. Baillie refused to post bail and “openly repudiated them and refused to be answerable in any wise for their future good conduct, they were declared, as vacant property, forfeited to the noble damsel Katherine de Barnault, Lady of Savigny.” The piglets thus avoided execution. Presumably, at some point, they served as the noble damsel’s supper. Or breakfast. Such were the options available to pigs found innocent of criminal acts.
In continental Europe, there was a strong sense of the agency and criminal culpability of the animal. Owners were not held responsible for the behavior of the pig; the pig was its own autonomous actor. In 1499, in Chartres, France, a pig was tried, convicted and executed for killing a baby. The pig’s owners were fined – but for inadequate supervision of their child rather than of the pig. Things were a bit different in England, where an animal who killed someone would be seized by justice authorities. It would become the property of the king. The animal lived in service to a new master while the owner was punished by the loss of his property.
These heyday of criminal prosecutions of animals lasted until the early 1700s. Cases have been documented across Europe, but were most common in France and Switzerland. Evans references a Canadian case in the late 1600s involving turtle-doves, but does not indicate what their offence was.
By the 1800s, criminal prosecution of animals tapered off, although in the United States during the early 1900s there was a flurry of high-profile executions of elephants. From time to time, pachyderms turned on their trainers with fatal consequences. These homicidal elephants were dispatched with great fanfare; they didn’t get the formality of a proper trial but their executions mimicked the fate of human murders. The elephants were hanged or electrocuted.
Execution or Excommunication?
During the heyday of the criminal prosecution of animals, all animals were not created equally.
Individual domesticated animals accused of committing criminal acts such as homicide or copulation with humans were tried in secular courts. If convicted, the punishment was execution. These criminalized animals were usually hanged. Prior to execution, they were often dressed in human clothing. Despite this effort to humanize them, the animals were usually hanged upside down by the feet rather than by the neck. Death for a murderous pig or dog was slower and more painful than for a human convicted of the same offence.
Wild, undomesticated animals were treated differently. They were tried as a group for collective offences. The rats in a town would be tried for eating grain or insects would be tried for infesting a crop. Trials of these animals were conducted before ecclesiastical courts. At trial, representatives of the offending group would be placed before the judge while court-appointed lawyers argued on their behalf. Restorative justice measures would often be attempted. If that failed resolve the issue, the animals would be excommunicated.
Let’s look at one example. In 1659, caterpillars were accused of trespassing on crops in five Italian communities. After a formal, notarized compliant was filed with the courts, posters were put up summoning the caterpillars to a judicial hearing. A defence lawyer was appointed to act on behalf of the caterpillars. The court issued an order recognizing the rights of the caterpillars to exist and eat, but only if this “does not destroy or impair the happiness of man, to whom all lower animals are subject.” The caterpillars were ordered to live in a forested area where their existence would not destroy human crops. Whether because they were rebellious or didn’t understand the Latin used in the court documents, the caterpillars did not comply. As a result, they were excommunicated.
Excommunication as a punishment was one of the strangest features of these strange trials of rats or insects. These animals could not join a church or adhere to formal Christian practice, if for no other reason than difficulty in understanding the liturgy. With excommunication, the animals were kicked out of an organization they had not joined – and were incapable of joining. In this, rats, beetles and caterpillars were treated differently than Pagans, Muslims or Jews. As non-believers of Christian doctrine, these humans were not subject to church ecclesiastical law. They could not be convicted of heresy or excommunicated from a church they did not adhere to. Different standards applied to the animals.
Animal trials were taken very seriously. Court officials such as judges, bailiffs and hangmen were paid normal rates. An official executioner would sometimes travel a few hundred miles in order to kill a pig in the proper, legally-prescribed, punishment kind of way. Courts appointed top lawyers to represent the animals. Sometimes reputations could be made. In 1520, Bartholomew Chassenee established a reputation as France’s most talented lawyer through his representation of rats accused of eating barley that did not belong to them. When the rats did not present themselves on the day of their trial, Chassenee successfully argued for a continuance on the grounds the rats had not been given proper notice. Posters were put up in the fields and proclamations ordering the rats to attend their trial were read from the pulpits of all the churches in the area. The rats were callously indifferent to the summons. At the second hearing, no rats appeared. Chassenee
excused the default or non-appearance of his clients on the ground of the length and difficulty of the journey and the serious perils which attended it, owing to the unwearied vigilance of their mortal enemies, the cats, who watched all their movements, and, with fell intent, lay in wait for them at every corner and passage. On this point Chassenee addressed the court at some length, in order to show that if a person be cited to appear at a place, to which he cannot come with safety, he may exercise the right of appeal and refuse to obey the writ, even though such appeal be expressly precluded in the summons.
The court rescheduled the hearing. All the cats in the area were ordered to be confined in their owners’ homes on the third scheduled trial date. Notice was again given. No rats appeared. Chassenee argued the rats still had a legitimate reason for non-attendance. Dogs had not been confined. With this, the court gave up and abandoned the prosecution. Chassenee became famous for his pettifogging delay tactics. He ended his career as the President of the Parliamént du Provence. We still remember his greatness today.
Explaining the Criminal Prosecution of Animals
To our 21st Century way of thinking, the formalized legal prosecution and punishment of animals for human criminal offences seems preposterous and pointless. Five hundred years ago, in parts of Europe, it obviously made sense. How can we make sense of what appears to be senseless?
A hundred years ago, there was a flurry of interest in the criminal trials of animals sparked by Evans’ book. (Evans spent 40 years looking through old newspapers and legal records to document these trials). A century ago, academics attributed these trials to primitive ignorance or the Judeo-Christian theological belief that God gave humans dominion over other beasts. Neither explanation was particularly satisfying. They did not explain the temporal and geographical specificity of the trials. The theological explanation did not explain why the accused animals were treated, legally, as equivalent to humans.
Starting in mid-1980s, there was a revival of academic interest in these old trials. There’s been a few dozen articles published in all manner of academic journals. I’ll give you a few examples to give you a flavour of this stuff.
An economist named Peter Leeson offers a cynical, economically-grounded explanation. Writing in the Journal of Law and Economics, Leeson argues:
that the Catholic Church used vermin trials to increase tithe revenues where tithe evasion threatened to erode them. Vermin trials achieved this by bolstering citizens’ belief in the validity of punishments by the Church for tithe evasion: estrangement from God through sin, excommunication, and anathema.
Vermin trials permitted ecclesiastics to evidence their supernatural sanctions’ legitimacy by producing outcomes that supported those sanctions’ validity. Insects and rodents are itinerant. Moreover, they may be driven away or killed by predators or flee or die naturally for other unobserved reasons. Vermin that departed under courts’ imprecations evidenced ecclesiastics’ power to use the same imprecations to punish tithe evaders. Such trial outcomes strengthened citizens’ belief that the Church’s supernatural sanctions were real, thereby allowing ecclesiastics to reclaim jeopardized tithe revenue.
Inevitably, someone had to undertake a Foucauldian analysis. I mean why not? Here’s a taste:
The practice of animal trials manifests the exercise of a different modality of power if it took place in secular rather than ecclesiastical settings. Although both secular and ecclesiastical trials took divine scripture as their primary reference, there remains a fundamental functional difference between them. In secular trials, the penal apparatus was under the command and in the service of the monarch. The monarch would respond to all contestations against his rule with ferocity no matter where it came from. He was compelled to punish every offense regardless of the species of the perpetrator so that he could claim absolute sovereignty on his territory. In that sense, secular animal trials enacted a different modality of power, namely sovereign power, and served to consolidate the rule of the sovereign. The animal body was simultaneously a battlefield for the competing claims of pastoral power and sovereign power and a point of articulation between them.
Yikes.
I will offer a much simpler explanation:
• People like to assign blame when things go wrong,
• People do stupid, weird things.
• Things that seem like good ideas at the time sometimes are not, in retrospect.