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.
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. …