Is the law an ass?

Recently loyal reader Alberto Arnáiz recommended that I read a book called The Law is an Ass, an anthology of legal quotations. I was unable to find the book, but it gave me the idea for this post. The law is an ass is an oft-repeated expression in English. It may be truer than we think. All over Europe for nearly 1,000 years all creatures great and small – pigs, cows, snails, rats and even flies and caterpillars – were hauled into court on charges including murder, vandalism and obscenity. These trials were conducted with full legal procedure: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was defended by a lawyer provided at public expense.  I first came across this phenomenon a few years ago when I read a book called The Trial: A History, from Socrates to O. J. Simpson by Sadakat Kadri. I had forgotten about this until I heard an excellent programme on the BBC World Service. Animals on Trial, which was presented by thriller writer and former solicitor Frances Fyfield, took a look at some weird cases from the legal annals. The animals that found themselves in the dock tended to be domesticated ones, most often pigs, but also bulls, horses, and cows. The other common group to find themselves arraigned were pests such as rats and weevils. There were two distinct kinds of trials. The criminal courts would try animals for crimes against individuals, whereas those that were a menace to society would go before ecclesiastical courts.

The courts were strict, bit they also tried to give the defendants a fair crack of the whip – guilty beyond all reasonable doubt and all that stuff. In 1457, a sow killed a five-year old boy. As she began devouring the body, her six piglets joined in the feast. They were caught “in fraganti”, covered in blood at the crime scene. However, the prosecution was unable to produce any evidence that would prove that the piglets had actually been accomplices in the homicide itself. Therefore, the court decided to give the piglets back to their owner on the understanding that he would be responsible if they committed a crime in the future. The owner was unwilling to vouch for the swine, so the court confiscated them, sold them, and kept the profits.

Criminal trials worked well for individual animals. But sometimes the accused operated in gangs. For this contingency ecclesiastical courts were thought to be more appropriate. These animals faced a far more serious punishment – excommunication. The Church hired lawyers to argue the case on both sides.  In the year 1510, the people of Autun,France, went to their local bishop and asked him to deal with the rats that had been eating the barley crop. Being a fair man, the bishop first ordered a trial, assigning Bartholomew Chassenee as legal counsel to the vermin. Lawyers have a reputation for sophistry and these trials certainly gave them the opportunity to show off their virtuosity. Because his clients didn’t have a very good reputation to begin with, Chassenee knew he would have his work cut out to get an acquittal. On the first day of the trial, Chassenee made an astute point. He declared that the prosecution had failed to specify which rats had been responsible. This grave oversight meant that every rat in Autun, even the ones that hadn’t eaten the barley, could be facing excommunication for a crime they hadn’t committed. This was outrageous. Therefore he demanded that every rat in the town be summoned to court to plead their case. Every priest in every parish had to announce the charges, so as many rats as possible would know that they had to testify. Despite all the Bishop’s efforts, not a single rat showed up for their court date. Thing were not looking good for the rodents. But have no fear; the ingenious Chassene had an ace up his sleeve. He pointed out that human defendants could refuse a summons if making the journey to court placed their lives in danger. Rats faced just such a danger. Every rat was under constant threat of being eaten by hungry cats, so there was no way they could be expected to appear in court unless the prosecution was able to guarantee their safe passage. As no such guarantee could be provided the case against the rats was dropped.

Animals that were caught in the act of sexual intercourse with a human being would also be punished. These punishments could be brutal – hanging, being buried alive or burning at the stake. In 1750, in France, Jacques Ferron was convicted of coupling with a female donkey. Both Jacques and the donkey were sentenced to death. However, a parish priest petitioned for the court to show mercy. Unfortunately for Ferron the priest was only willing to vouch for the good character of the animal and so the donkey was given a pardon but Ferron was burnt at the stake.

What makes these stories so irresistible is the mixture of the legal solemnity and the absurd nature of the enterprise. How can we explain such bizarre legal proceedings? Kadri argues that these trials were part of a broader phenomenon that saw corpses and inanimate objects also face prosecution. In Ancient Greece, a statue that had fallen on a man was found guilty of murder. Its sentence was to be thrown into the sea. In the ninth century Pope Stephen VI accused his predecessor, Formosus, of bringing the papacy into disrepute. The deceased Pope’s rotting corpse was exhumed and was seated on a throne while Stephen read out the charges against him. With the corpse propped up on a throne, a deacon was appointed to answer for Formosus, who was found guilty. The corpse was stripped of its papal vestments, the three fingers of his right hand used for benedictions were cut off and all of his acts and ordinations were declared invalid. The body was finally interred in a graveyard for foreigners, but was then re-exhumed, tied to weights, and thrown into the Tiber River. And in Russiain the Middle Ages a bell was convicted of treason and exiled to Siberia.

We do not try animals these days. Animal trials did continue well into the modern age, but they became less common after the Enlightenment, when it was argued that animals could not be punished as they did not have moral agency

We may feel superior but these animal trials do raise important issues about moral agency. Kadri sees modern parallels these rituals in the punishment of children and the mentally ill. A number of American states try children as though they were adults. And the insanity plea in criminal trials always generates controversy. We feel cheated if a criminal is able to get out of jail. This is despite the fact that the time spent in an asylum may actually be longer.

One infamous case was Ricky Ray Rector, who was executed for the 1981 murder of two people including police officer Robert Martin in Conway, Arkansas. Rector was not actually mentally incapacitated when he committed the crimes. But after having killed the policeman, he then shot himself in the head in an apparent suicide attempt. He was unsuccessful but the resulting lobotomy left him with severe brain damage. He was clearly him unable to understand the criminal charges against him or his resulting death sentence. The Governor of Arkansas, Bill Clinton made sure that the execution went ahead. Rector was so oblivious to his fate that he wanted to save the pecan pie from his last meal for after his execution. Christopher Hitchens claimed that Clinton did it to distract attention from the Gennifer Flowers sex scandal. Hitchens may be right but I think Clinton was facing other incentives. He must have remembered what had happened to Democratic challenger Michael Dukakis in the race against George Bush in 1988. Willie Horton a convicted murderer committed a rape and assault in Maryland after he was allowed out for the weekend. During a debate CNN’s Bernard Shaw went straight for the jugular asking Dukakis: “Governor, if Kitty Dukakis (his wife) were raped and murdered, would you favour an irrevocable death penalty for the killer?” Dukakis’s negative answer did not help him in the polls. The ambitious Clinton, who did not want to appear soft on crime, was not going to make the same mistake.*

For 2000 years there had been a strong link between crime and vengeance. Suddenly we had a void. Retributive justice is at the heart of law in most cultures throughout the world. Punishment serves as catharsis. We need agency to justify putting people away. But we now see that it is a very complex question. The idea of free will has suffered some important reverses. Behavioural genetics is in its infancy but we are beginning to hear the excuse that “it was my genes wot did it.” These questions will continue to be debated for many years to come. I do feel that criminals should be held responsible for their acts. We allow too many excuses. But I do draw the line at mentally retarded patients. In Atkins v Virginia the US Supreme Court banned the execution of mentally retarded patients as a cruel and unusual punishment. For dissenting justice Antonin Scalia the decision had no legal, scientific or logical basis. He argued that society’s moral outrage sometimes demanded execution of mentally retarded offenders.

I will finish with this quote from Kadri’s book:

The fact that the condemnation is incomprehensible to the person punished would seem to be not much more relevant to a judge like Scalia than the mental state of pigs and corpses was to the men who hoped to obliterate the very memory of their crimes.”

One Response to Is the law an ass?

  1. Alberto says:

    Many thanks for the mention. I can lend you that book if you are still interested en it.

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