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Animal Trials 
by Edward Payson Evans.
Hesperus, 146 pp., £9.99, February 2013, 978 1 84391 382 5
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Crucifixions, burnings, boilings: the walls, windows and alcoves of churches and cathedrals are adorned with all manner of sticky ends. The Church of the Holy Trinity in Falaise, Normandy once contained a unique example: a fresco on its western wall, dating from the late 14th century, depicted the death by hanging of a pig. The swine was no martyr, but a murderer. According to a contemporary account, the sow had torn at the face and arms of a local child, who died from the injuries. The pig was apprehended and brought before the local tribunal. Having listened carefully to the facts of the case, the court passed sentence: the beast was to be ‘mangled and maimed in the head and forelegs’ before being sent to the gallows. By all accounts, the execution was a crowd-puller. More than five hundred people pitched up to watch the pig trot onto the scaffold that had been erected in the local square (the story that a herd of her peers was forced to attend, by way of warning, is now thought to be apocryphal). The spectacle even attracted the attention of the vicomte de Falaise, who was sufficiently moved to commission the fresco in commemoration. Perhaps in deference to this illustrious guest, the pig was trussed up in breeches, a waistcoat and ‘white gloves’, before being garrotted by the ‘master of high works’.

The church at Falaise, including the fresco, was whitewashed in 1820, but the tale of the luckless swine has been preserved in Edward Payson Evans’s history of the criminal prosecution and capital punishment of animals, first published in 1906 and now reissued. According to Evans, such trials were commonplace, forming part of the fabric of medieval European justice. Pigs accounted for more than half of all recorded animal executions because large numbers were commonly left to roam around medieval towns. Infanticide was the most common offence. In June 1494, a piglet was taken into custody in Clermont for having ‘strangled and defaced a young child in its cradle’. It seems that the suspect would have been confined in the same cell and treated in much the same way as a human prisoner, before being tried in front of a court ‘as justice and reason would desire and require’. Witnesses were summoned and cross-examined, and once satisfied of the defendant’s guilt, the court held that the pig be ‘strangled on a gibbet of wood’ so that ‘an example may be made and justice maintained’.

Pigs were not the only culprits. The medieval courts of Europe, particularly those of France, appear to have dealt with a ‘miscellaneous crew’ of beasts, including ‘caterpillars, flies, locusts, leeches, snails, slugs, worms, weevils, rats, mice, moles, turtle doves, pigs, bulls, cows, cocks, dogs, asses, mules, mares and goats’. In 1610, a pack of mad dogs ‘tore in pieces a Franciscan novice’; the dogs were sentenced to death. Evans laments that ‘no account should have been taken of their rabies as an extenuating circumstance or ground of acquittal’. In fact, such technical defences were quite often advanced. In 1314, a bull was taken into custody by the officers of the comte de Valois, after it escaped onto the highway and fatally injured a passer-by. A capital sentence was passed and duly carried out, but an appeal court later ruled that the bull had been wrongfully arrested, thus overturning the verdict on a technicality. Sometimes, as in the case of a condemned French donkey, an appeal and retrial resulted in a sentence of hanging being commuted – to being ‘simply knocked on the head’. Occasionally, the accused would be acquitted. The authorities appear to have gone to remarkable lengths to ensure that due process was observed. The extra-judicial killing of animals, in particular, was frowned on. In 1576, a Franconian hangman, Jack Ketch, decided to take the law into his own hands and publicly hang a sow that was awaiting trial for an (alleged) attack on a carpenter’s child. Ketch’s actions were denounced by the authorities, and he fled the area in disgrace (it’s more likely to have been his usurpation of judicial power than his cruelty to the sow that rubbed the authorities up the wrong way).

Some animals had the sins of their owners visited on them; most often, these were sins of the flesh. In cases of bestiality, both parties were usually burned at the stake. The archives spare us the more lurid details, but the bland accounts tell their own pitiful tale: ‘a man and a cow … hanged and then burned by order of the parliament of Paris’; ‘a man and a mare … executed and their bodies buried in the same carrion pit’; one man, ‘a most unparalleled wretch’, was executed alongside ‘a cow, two heifers, three sheep and two sows’. More enlightened times saw the unwilling paramours recognised as victims. One tale from Vanves in 1750 saw the entire commune formally attesting to the good character of a female ass that had been implicated in such a tryst. The donkey, their statement read, ‘had always shown herself to be virtuous and well behaved both at home and abroad and had never given occasion of scandal to anyone’.

What was the point of it all? Evans fails to give a wholly satisfactory answer and, indeed, none immediately presents itself from the scattershot evidence included in his book. Modern theories of criminal punishment, which rest largely on the tenets of rehabilitation, deterrence and retribution, don’t provide much assistance. Even advocates of capital punishment would concede that rehabilitation, in this life at least, is not one of its virtues. The salutary effect of public execution on a herd of animals must also be doubted (though Evans does recount the story, enthusiastically reported by the papal nuncio to the Hungarian court, that ‘in Africa crucified lions are placed near towns, and that other lions, however hungry they may be, are kept away through fear of the same punishment’). One might expect these trials to serve as a deterrent against feckless husbandry, and those that took place in late medieval France and elsewhere prefigured a shift in criminal responsibility from the beast itself to the human custodians who had left ‘such beasts without a good and sure guard’ (an incipient form of negligence). But Evans is at pains to point out that animal trials were not an exercise in preventive justice. The owners of the guilty animals were not generally held responsible, and were sometimes even compensated for the loss occasioned by the execution of their animals. The invoices of hangmen, carpenters and other beneficiaries of the execution industry attest to the considerable cost that was incurred in all this.

The largely symbolic prosecution of the insensible can be placed in a tradition that stretches back far beyond the Middle Ages. The Athenian laws of Drakon and Erechtheus required weapons, and other inanimate objects by which a person had lost their life, to be publicly condemned and thrown beyond the Athenian boundaries. In this way, a statue of the athlete Nikon which had been pushed from its pedestal, crushing one of its assailants to death, was brought before a tribunal and sentenced to be cast into the sea. A similar fate much later befell a Russian bell that in 1591 was tolled to incite insurrection following the assassination of a Russian prince. ‘For this serious political offence,’ Evans writes, ‘the bell was sentenced to perpetual banishment in Siberia, and conveyed with other exiles to Tobolsk.’ The bell was not fully pardoned until 1892. The retribution taken on these inanimate objects, like the ‘hemp cure’ (i.e. hanging) publicly administered to so many errant beasts, plainly didn’t imply that the animals had any malicious intent. Rather, Evans argues, it was a ‘solemn act of expiation’ by which the community could cleanse itself of things that had offended against the natural order. The penalties imposed by medieval law were not determined by the character of the criminal, but by the enormity of the crime. This persisted for many centuries, until the presence of mens rea gradually became a necessary precondition for a finding of criminal culpability.

While secular courts were most often called on to bring domestic animals to account, the ecclesiastical courts played their part in trying pests that could not be punished individually. To the modern eye, the ‘vermin trials’ of the 15th and 16th centuries seem like episodes in mass delusion. Courts heard complaints against the full array of agricultural nuisances, mostly at the behest of despairing farmers whose remedies had failed to rid their fields of the critters; the insects themselves were granted the services of an advocate. The ecclesiastical courts had a limited number of sanctions at their disposal. Capital punishment was obviously difficult to administer – indeed, that was the original problem – but the church was able to invoke an impressive range of metaphysical sentences, the most serious being anathema and excommunication.

Occasionally, the parties would try to reach an out-of-court settlement. In one case involving an infestation of termites in a Franciscan monastery, the defence counsel submitted that the monks had moved in long after the insects, and were therefore trespassing on the termites’ land. Persuaded by the force of this argument, the court gave its blessing to a compromise by which the plaintiffs were forced to provide suitable accommodation for the defendants in the grounds of the monastery. The record of the trial states that on hearing the verdict the termites ‘all came out and marched in columns to the place assigned’, which was noted by the chronicler as ‘conclusive proof that the Almighty endorsed the decision of the court’. On another occasion, a public meeting was called in the French town of St Julien to discuss whether an alternative home could be provided for a species of weevil known as curculio, which had laid waste the local vineyards. It was agreed that a piece of land should be set aside for the insects, provided that the inhabitants of St Julien retained certain rights. The weevils’ lawyer rejected the compromise, declaring that ‘he could not accept for his clients the offer made by the plaintiffs, because the place was sterile and neither sufficiently nor suitably supplied with food for the support of the said animals.’ The final outcome of this wrangling is unknown: ‘the last page of the records has been destroyed by rats or bugs of some sort.’

Trials could be long-drawn-out affairs, in which lawyers would lay elaborate theological and metaphysical groundwork. The prosecuting attorney would first set out the cause of complaint, often in the most florid and overwrought terms. An opening speech in the Lombardian trial of a swarm of locusts decried ‘the ravages of little beasts, which spare neither the corn nor the vines, ravages like those of the boar that laid waste the environs of Calydon, as related by Homer in the first book of the Iliad, or those of the foxes sent by Themis to Thebes, which destroyed the fruits of the earth and the cattle’. The defence counsel, seldom able to plead alibi or mistaken identity, would invariably resort to ingeniously casuistic lines of argument in order to secure a technical knockout. One French lawyer, Bartholomew Chassené, sought to excuse the failure of his clients – rats – to appear in court by citing ‘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’. A more common submission was that the summons served on the animals wasn’t valid ‘as such a procedure implies that the parties summoned are endowed with reason and volition and are therefore capable of committing crime’. The prosecution had an answer to this – namely, that the ‘irrationality’ of an object in no way precluded its punishment. It cited the injunction of Jesus himself that ‘every tree that bringeth not forth good fruit is hewn down and cast into the fire.’ If destruction of these objects was permitted, then an excommunicated caterpillar was getting off pretty lightly. Sometimes it was argued that the insects were simply doing God’s work, ‘exercising an innate right conferred upon them at their creation … a right which cannot be curtailed or abrogated, simply because it may be offensive to man’. Perhaps the Almighty had sent them to punish the community for its sins. ‘To hurl anathemas against them would be to fight against God, who has said: “I will send wild beasts among you, which shall destroy you and your cattle and make you few in number.”’ Well-rehearsed arguments and counter-arguments were thrown back and forth for days, weeks and often months at a time.

Surprisingly, this filibustering appears to have been tolerated – even encouraged – by the bishops who presided over proceedings. The court would invite counsel to expound on one theological treatise after another, with apparently little regard to the mounting agricultural crisis. Given that the pests would eventually move on of their own accord, having exhausted the crops, it is perhaps unsurprising that the clergy were happy for the proceedings to be spun out: the desired outcome was achieved simply by waiting. For the Church, the successful banishment of a plague of insects was a potent symbol of its spiritual authority, the stated price of which was renewed prayer and, most important for its temporal power, the prompt and full payment of tithes. One swarm of insects that lingered after being excommunicated was said in a contemporary account to have remained ‘as a plague and a punishment until the people repented of their wickedness and gave evidence of their love and gratitude to Him, namely, by giving to the Church tithes of what the insects had not destroyed’. Heads we win, tails you lose.

Evans uses the example of the medieval animal trial as a slightly shaky jumping-off point for a critique of the fashionable penological theories of his day; from Lombroso’s theories of the characteristic physical attributes of the criminal, to the work of the ‘psychopathologists’ who saw crime as a mental aberration. Evans did not subscribe to either school, but believed that advances in the study of the human mind should play some part in the understanding, and even excusing, of individual criminal responsibility. ‘We ridicule ancient and medieval courts of justice for prosecuting bugs and beasts,’ he wrote, ‘but future generations will condemn as equally absurd and outrageous our judicial treatment of human beings, who can no more help perpetrating deeds of violence, under given conditions, than locusts and caterpillars can help consuming crops.’ On that, the jury may still be out. But it is true that the law continues to struggle with the ‘mental element’ of crime. The defence of insanity has not changed fundamentally since the 1843 M’Naghten case, and its rules are still cloaked in Victorian talk about ‘defect of reason’ and ‘disease of the mind’. Similarly, the continuing judicial debate about the scope of ‘diminished responsibility’ – a partial defence to murder based on the medically hard to define ‘abnormality of mental functioning’ – is testament to the persistent, and perhaps unbridgeable, gap between the two cultures of law and science. Meanwhile, as academics and environmentalists seriously discuss the possibility of giving animals formal legal standing – thereby clearing the path for whales, sea-lions and other endangered species to be represented in court, under the protection of an animal bill of rights – we may one day find the law looking from pig to man, man to pig, and finding it impossible to say which is which.

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Letters

Vol. 35 No. 24 · 19 December 2013

The stories of Europe’s animal trials are ever worth retelling, but missing from Edward Payson Evans’s compendium of criminal prosecutions against both animals and objects is perhaps the strangest case of all, and the only case I know of from Great Britain: the trial for murder of a statue of the Virgin Mary, which took place in the Welsh village of Hawarden in the year 946 (LRB, 5 December). According to a Saxon manuscript, the story goes that the statue, in the rood loft of the church, fell on the head of the Lady of the Castle when she was at prayer and killed her. It was arrested, charged with murder, brought before a jury, convicted and condemned to death. However, seeing as it was the Virgin, the villagers decided not to hang her but instead to lay her on the shores of the River Dee ‘from whence they might see what became of her, which was accordingly done; soon after which, the tide of the sea came and carried the said image to some low land … where it was found the next day, drowned and dead.’ Despite their circumspection, the villagers of Hawarden earned themselves the title of the ‘Hawarden Jews’, which remained with them into the 18th century.

Nicholas Humphrey
Cambridge

Vol. 36 No. 1 · 9 January 2014

Michael Grayshott writes that ‘diminished responsibility’ is a ‘partial defence to murder based on the medically hard to define “abnormality of mental functioning"’ (LRB, 5 December 2013). The term ‘mental functioning’, newly and inadvertently coined by Grayshott, would at least be comprehensible. The wording of the Homicide Act (1957), which covers ‘diminished responsibility’ (a phrase that occurs in the contents in a marginal note to the legislation) is far more confused than that. The relevant part of the act actually reads: ‘Where a person kills … he shall not be convicted of murder if he was suffering from such abnormality of mind … as substantially impaired his mental responsibility for his acts.’

There have been many criticisms of this phraseology. How do we define an ‘abnormality of mind’? We don’t: it is not a medical or psychiatric term. The jury ultimately decides case by case. What threshold is implied by that use of ‘substantially’? Worst of all, does ‘mental responsibility’ refer to any entity we understand, other than just plain ‘responsibility’? Also, the act is peculiar in criminal law since ‘diminished responsibility’ must be proved ‘on the balance of probabilities’ (as in civil proceedings) rather than, as is generally the case in criminal proceedings, ‘beyond reasonable doubt’. It is intriguing that although the wording has the ring of something created by committee, the act has resisted revision for more than fifty years.

Christopher Cordess
University of Sheffield

The story of the ‘pig of Falaise,’ formally tried and executed in the late 14th century for the supposed murder of a child, recounted by Michael Grayshott, is an excellent one. Alas, like so many good historical stories, it is also largely and perhaps entirely fictional, as the historian Paul Friedland recently demonstrated in Seeing Justice Done: The Age of Spectacular Capital Punishment in France. The sole written source is a book published in 1764, which printed a terse receipt, allegedly from 1386, in which a hangman received payment for executing a pig that had killed a three-month-old child. All the embellishments in Edward Payson Evans’s account – the formal trial and conviction, the crowds, the pig’s costume and so forth – appear to be later, Romantic inventions.

David A. Bell
Princeton, New Jersey

Vol. 36 No. 2 · 23 January 2014

Christopher Cordess’s criticism of the definition of ‘diminished responsibility’ (the partial defence to murder) in the Homicide Act 1957 – in particular, its use of the pseudo-medical term ‘abnormality of mind’ – is well taken (Letters, 9 January). He does however give me too much credit in claiming that I have inadvertently coined a workable alternative. My reference to ‘abnormality of mental functioning’ is actually taken from section 52 of the Coroners and Justice Act 2009, which repealed and replaced the 1957 definition. Crucially, it is now necessary to show that the ‘abnormality’ arose from a ‘recognised medical condition’. Of course, this is the sort of ‘clarification’ that lawyers pray for (it will not have escaped their attention that the World Health Organisation recognises ‘suspiciousness’ and ‘anger’, for example, as being two such conditions), but it does at least attempt to corral the defence into territory that would not leave the modern medical practitioner entirely bewildered.

Michael Grayshott
London SE3

Nicholas Humphrey’s amusing story of the trial of the Virgin Mary in Hawarden in 946 AD is, sadly, just a story, not history (Letters, 19 December 2013). For there to be a ‘Lady of the Castle’ in Hawarden, there must be a castle. But no castle is known anywhere in the British Isles in 946 or for a century later. A handful of castles were built by Edward the Confessor’s Norman favourites during his reign (1042-66), but the main era of castle-building in England began after the Norman Conquest in 1066. About five hundred castles had been built by 1100, though the evidence is either archaeological or from later documents: fewer than fifty are recorded in the Domesday Book (1086).

John Moore
University of Bristol

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