From at least the eleventh century, relationships between humans and nonhuman animals has been the subject to legal regulation (Beirne, 2011; Girgen, 2003; Sykes, 2011). The criminal trialling of animals occurred for centuries until around the 1700s, and evidence of such has been found across Europe, including in Greek law, Roman law, Hebrew law, and the works of Plato (Sutton, 1999) and Shakespeare (Girgen, 2003). A wide variety of animals were tried for ‘crimes’ in Europe, including insects, horses, pigs, goats, wolves, snakes, dolphins, and dogs (Beirne, 2011).
The seminal text from which we get our understanding of these issues was written by early animal rights proponent, Edward Payson Evans, in his 1906 text The Criminal Prosecution and Capital Punishment of Animals (Evans, 1906). Much of the contemporary literature draws on Evans’ early work, which is now almost 120 years old (for instance see: Beirne, 2011; Sykes, 2011; Sutton, 1999; Girgen, 2003). Given the lack of remaining records in existence, and the overreliance of authors on Evans’ (1906) work, it is unclear exactly how many trials occurred and whether the reporting of them is entirely accurate (Girgen, 2003). However, it appears that to the best of current knowledge, the trialling of animals for “crimes” was relatively common, enough so that playwrights could make references to the issue in expectation that audiences would understand (Girgen, 2003).
Animals who committed various crimes including murder and sexual offences against humans and other animals were tried in secular criminal courts, often with the same seriousness and procedural rules as the trials of humans (Beirne, 2011; Girgen, 2003; Sykes, 2011). Animals would generally be provided with defence counsel, who purportedly took their job to defend the animal very seriously, often employing sophisticated and complex legal arguments (Girgen, 2003). In a phenomena that seems very odd today, animals were sometimes held in jail cells alongside humans, dressed up in human clothes and put on trial as if they were indeed human and had the same understandings of responsibility, intent and morality (Sykes, 2011; Girgen, 2003). ‘Evidence’ would be presented regarding not only the alleged criminal offending, but also the animal’s character (Sykes, 2011). It was common for lawyers representing animals to argue that they had no capacity to commit crime, and were simply acting on instinct (Sykes, 2011). However, this argument was regularly dismissed and if found guilty, animals would usually be exiled or executed and on occasion, their bodies exhibited in public, as if to deter future criminal behaviour by other animals (Beirne, 2011; Girgen, 2003; Sykes, 2011). One notorious example involved the public execution of a pig in France, in 1386, for causing the death of a child (Sutton, 1999). When publicly hung, the sow was dressed in a human mask and human clothing (Sutton, 1999).
Much of the literature debates the origin and purpose of these types of proceedings. It is also quite paradoxical to consider that animals were certainly seen as lesser than humans during these trials, but at the same time were expected to have the decision making skills and foresight of humans (Sykes, 2011). Some argue that the basis of these concepts was a reflection of the scripture in the Old Testament (Sutton, 1999), and reflected superstitious beliefs (Sykes, 2011). For instance, Sutton (1999) reminds us that “Exodus 21 v.28 reads ‘If a bull [ox] gores a man or a woman to death, the bull must be stoned to death…” (p.10). However, Evans (1906) sees this as just another form of state sanctioned ritualised abuse of animals, empowered and validated by courts. Evans (1999) as cited in Sykes (2011) argues that these trials were really about the state executing its brute force and need for complete control over less powerful beings. Of course, humans across the entire globe have punished animals in much less formal ways for their “offending” – such as killing animals for wandering on sacred areas or for stealing food from what humans see as their living areas (Girgen, 2003). Perhaps then, the idea of the trialling animals stems from the innately human need to find someone to blame for the death of human beings (Sutton, 1999).
As outrageous as the trialling of animals for crimes seems today, the concept of trying animals for their acts has not entirely left the legal system internationally, nor in Aotearoa New Zealand. Instead, it has morphed into other quasi-criminal proceedings, such as in the case of ‘dangerous’ dog legislation (seen internationally) which broadly allows for the euthanising of dogs deemed to have offended against humans or other animals. In Aotearoa New Zealand, ‘dangerous’ dogs are held accountable for their offensive behaviours under the Dog Control Act 1996. Sykes (2011) argues that the trialling of animals in medieval times provides us with a contemporary warnings “about the implications of placing animals in human roles in a human legal system” (p. 277). Similarly, Girgen (2003) argues that contemporary trials concerning the behaviour of ‘dangerous’ dogs treats them as ‘offenders’ who have committed ‘crimes’. Just as the early Greeks tried to restore order and moral equilibrium to society through the criminal trialling of animals for human deaths (Girgen, 2003), the current courts here in Aotearoa attempt to do the same by trying dogs for their behaviour. While dogs are no longer dressed up as humans or formally seen as defendants, they continue to be discussed in courtrooms that do not belong to them, that do not consider their points of view, and that they have no understanding of (Sykes, 2011). Many of the trials actually worsen the living conditions and quality of life of the dog, in order that humans can debate the property rights of the owner in lengthy court proceedings (Sykes, 2011). The trialling of animals is not just a historical absurdity – it remains a present day concern for the criminal justice system.
Laura Johnstone is a PhD student at the University of Canterbury (Aotearoa New Zealand), researching the treatment and experiences of animals in the criminal justice system. She holds a Bachelor of Arts, a Bachelor of Laws and a Master of Criminal Justice and her interests lie in state abuses of power, criminal justice systems, and prisons. Prior to returning to the academic world, Laura practiced law and worked across various government agencies as a public servant.
Artwork: Heather Fraser
References
Beirne, P. (2011). A note on the facticity of animal trials in early modern Britain; or, the curious prosecution of farmer Carter’s dog for murder. Crime, law, and social change, 55(5), 359-374. https://doi.org/10.1007/s10611-011-9291-8
Dog Control Act 1996. https://www.legislation.govt.nz/act/public/1996/0013/latest/DLM374410.html
Evans, E. P. (1906). The Criminal Prosecution and Capital Punishment of Animals. William Heinemann.
Girgen, J. (2003). The historical and contemporary prosecution and punishment of animals. Animal law, 9, 97.
Sykes, K. (2011). Human drama, animal trials: what the medieval animal trials can teach is about justice for animals. Animal law, 17(2), 273.
Animals in Society 
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