French and American Histories of Animal Prosecutions: Criminal Punishment and Animal Rights through the Prism of the Past
Résumés
Le xixe siècle et le début du xxe siècle ont vu l’émergence d’une littérature transatlantique consacrée à l’histoire des poursuites contre les animaux, qui n’a pas encore été étudiée. En se concentrant sur la France et les États-Unis, cet article explore la naissance et l’évolution de cette littérature. Fruit de développements tels que la montée de l’historicisme, de la criminologie positiviste et d’un mouvement social contre la cruauté envers les animaux, cette littérature aborde ce qui s’est avéré être des défis durables en matière de sanctions pénales et de droits des animaux. Ce faisant, elle met en évidence l’interrelation de ces domaines apparemment distincts.
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All translations in this article are my own, unless otherwise noted. My deepest thanks to the France-Stanford Center for Interdisciplinary Studies for funding the conference for which I wrote this paper and to Jean-Louis Halpérin for joining me in co-organizing the conference. I am also very grateful to the conference participants and anonymous reviewers for their helpful feedback.
- 1 A substantial literature on the history of animal prosecutions in Europe has been produced in recen (...)
1Between the early 1800s and the early 1900s, a sudden, and as yet unexplained, transatlantic literature on the history of animal prosecutions emerged. Such criminal prosecutions were filed regularly in European secular and ecclesiastical courts from the thirteenth through the eighteenth centuries and targeted a broad range of animals, including rats, pigs and dogs, as well as insects. Appointed lawyers to represent their interests, such creatures – charged with murdering particular individuals or causing pestilence within the broader community – called on the full range of defenses available in formal court procedure, such as failures of notice. Those that were convicted were subject to official forms of punishment, including execution and banishment, and yet others were acquitted1. While juristic commentary on the criminal prosecution of animals extends back many hundreds of years, it was only in the early decades of the nineteenth century that a historical literature devoted to the phenomenon began to be written.
- 2 B. W. Tuchman, A Distant Mirror: The Calamitous Fourteenth Century, New York, Knopf, 1978.
2A study of the emergence and evolution of this historical literature provides a window into themes of interest to a range of scholars, including lawyers, historians, and criminologists. The literature was produced by a variety of actors, including jurists, criminologists, and public commentators, and it reflected their distinctive professional vantage points. The lawyers who dominated the genre in the early and middle decades of the nineteenth century treated the history of animal prosecutions – a practice assumed to be long abandoned – as evidence of the enlightened nature of modern nation-states and their legal systems. In contrast, the criminologists writing in the late nineteenth and early twentieth centuries, as well as the public commentators whom they influenced, looked to this history in debating possible reforms of the law’s treatment of criminals and animals. The difficult questions of law and policy raised by this latter group of authors continue to resonate to this day and highlight the often neglected interrelation between the seemingly distinct domains of criminal justice and animal rights. But while the historical literature changed along with the identity of those producing it, one constant was that the seeming strangeness of these prosecutions to modern eyes made them an ideal prism by means of which to reflect on present-day legal and social arrangements. Such prosecutions served, in other words, as what Barbara Tuchman famously called a “distant mirror”2.
3Given the limited scope of these pages, it is impossible to provide a comprehensive transnational overview of the histories of animal prosecutions that began to appear in the nineteenth century. My focus is thus more narrowly on the literature that emerged in France and the United States. Examining developments in these countries underscores the increasingly transatlantic nature of this literature, while also reflecting the French-American collaboration that gave rise to the conference for which this paper was written. That said, the histories of animal prosecutions published in France and the United States did not emerge in a vacuum and were instead profoundly shaped by broader intellectual currents that transcended national boundaries – including the rise of historicism in Germany and of positivist criminology in Italy. Some attention to these developments is therefore necessary as well.
4The histories of animal prosecutions that appeared between the early nineteenth and early twentieth centuries took the form of two distinct, but partially overlapping waves. As detailed in Part I, the first wave emerged in France in the early to middle decades of the nineteenth century and knew no equivalent in the United States – though contemporary Americans made occasional reference to this literature. Written by jurists who were profoundly influenced by the German turn to history, these accounts embraced the history of animal prosecutions as a vehicle by means of which to explore (and demonstrate the power of) new historical methods of source-based, archival research. In so doing, they adopted the dominant historicist narrative of the progressive evolution of law and society, depicting animal prosecutions as the product of a bygone, primitive era – one that laid the foundations for the modern nation-state and its more enlightened system of (criminal) law.
- 3 On the late nineteenth-century American turn to Europe, see D. T. Rodgers, Atlantic Crossings: Soci (...)
5The second wave of literature on the history of animal prosecutions, discussed in Part II, emerged around the late nineteenth century and was sparked by two interrelated phenomena, both of which followed in key respects from contemporary evolutionary science – namely, the birth of positivist criminology and of a social movement against animal cruelty. Arising at a time when Americans had begun increasingly to focus on European developments and to study in European (especially German) universities, this second wave, unlike the first, was produced in part by U.S.-based authors3. Written by nascent criminologists, as well as by a range of public commentators, these later-arising histories of animal prosecutions were much less focused than their predecessors on history as an end in itself. Instead, they aimed to advance scientific learning and policymaking within the distinct but overlapping arenas of criminal punishment and animal welfare. Rejecting the notion that progress implied a definitive break with the past, these texts were premised on the view that atavistic remnants of humankind’s origins persisted into the present in ways that had difficult, often ambiguous implications for the making of policy. Did new understandings of humankind’s animal origins mean that punishment should be mild or harsh? And to the extent that it suggested that animals ought to be protected from human cruelty, were prohibitions of cruelty a means of regulating human conduct or instead rooted in a dawning recognition that animals had legal rights of their own?
6Part III examines how these debates over criminal punishment and animal rights were brought into sharp public focus as the result of a number of highly publicized prosecutions of animals – or rather their owners – which contemporaries compared to the much older history of animal prosecutions. A case from England, involving a dog named Bobs, received especially extensive transatlantic coverage, including in both France and the United States. Widely discussed in the contemporary press, the Bobs case served as inspiration for a popular short story, “The Dog Andrew”, written by the best-selling American author and former prosecutor, Arthur Train. A rumination on the ultimate impossibility of distinguishing between human and animal, the story highlights ambiguities at the core of positivist criminology and the movement against animal cruelty, pointing to the possibility that animals would be invested with forms of dignity long reserved for humans or, alternatively, that humans would be, as it were, treated like dogs.
I. The First Wave: The Influence of the German Historical School
7The first wave of literature on the history of animal prosecutions began to emerge in France in the early decades of the nineteenth century. Written by jurists with a deeply historical bent, this literature was a product of the contemporary turn to history, and in particular, the rise of the German Historical School. No similar literature was created at the time by Americans, though occasional references to the history of animal prosecutions (including to the French literature) appeared in U.S.-based law journals into the early twentieth century.
- 4 There is a very large literature on the rise of historicism in nineteenth-century German. It includ (...)
- 5 See, for example, P. den Boer, History as a Profession: The Study of History in France, 1818-1914, (...)
8In the early nineteenth century, Germany took the lead in developing what would become known as historicism. Rejecting Enlightenment-era notions of universal rationality, understood to be responsible for the French Revolution and its excesses, historicism explained social and political development not by reference to philosophical concepts like natural law, but instead as the end product of deep-rooted historical forces. An expression of German political nationalism, historicism was born of resistance to Napoleonic rule, which had itself been justified through supposedly universal claims of natural law4. But while Germany was at the forefront of these developments, contemporary France was also profoundly marked by their influence. As France struggled to define its own national identity, reflected in the ongoing political turmoil that roiled the country for much of the nineteenth century, debates over the nation’s past served as a vehicle by means of which contemporaries sought to shape its present and future5.
- 6 Kelley, p. 72-92; A. Dufour, Droits de l’homme, droit naturel et l’histoire: droit, individu et pou (...)
- 7 Kelley, p. 85-138; F. Audren and J.-L. Halpérin, La culture juridique française: entre mythes et (...)
- 8 Kelley, p. 85-92; Audren and Halpérin, p. 37-38 and 98-100; A.-J. Arnaud, Les juristes face à la s (...)
- 9 Rabban, p. 67-68; I. Durand, “Augustin Thierry et le Moyen Âge romantique: Le mythe des origines”, (...)
- 10 Kelley, p. 13-22 and 62-71; Audren and Halpérin, p. 105-07.
- 11 Ibidem, p. 105.
9As Germans turned to history, they focused in significant measure on law – an institution thought to exemplify the ways that national culture emerged as a product of historical forces6. Looking to the ascendant star of German legal-historical scholarship, French jurists of the era likewise became increasingly focused on history7. Established in 1819, the journal Thémis served as an important mechanism for importing German legal-historical scholarship, publishing works by Savigny, among others, as well as legal-historical accounts produced by French and other European authors8. Like their German counterparts, French jurists looked with particular interest to the Middle Ages – a period thought to serve as the genesis of the modern state, such that debates over medieval law and governance were a focal point for reflections on present-day legal, social, and political forms9. For scholars working in this historicist vein, history appeared to unfold in largely progressive fashion, leading from a primitive past to a more enlightened present. Such progress was not perfectly linear. For example, certain aspects of the medieval past – including traditions of local, communal governance – were embraced by some as progenitors of modern-day constitutionalism and criminal procedure. But while history’s path was understood to be at times circuitous, it was nonetheless viewed as largely forward-moving, such that it was the task of the historically informed jurist to anchor the nation’s present – and by implication future – in an account of its national past10. As argued by Frédéric Audren and Jean-Louis Halpérin, French jurists writing in the wake of the Restoration viewed recovering the history of French law as essential to the project of nation-building – a means, in short, of revealing the “native national genius”11.
- 12 See, for example, Arnaud, p. 68-70 (arguing that nineteenth-century French jurists – including thos (...)
- 13 J. L. E. Ortolan, Éléments de droit penal: Pénalité, Juridictions, Procédure, Paris, Librairie de P (...)
- 14 Ibid.
10Historicism shaped juristic writing in the field of criminal law, as in so many others. From the nineteenth through the early twentieth centuries, French criminal-law treatises were commonly structured around a historical narrative of progress12. Consider, for example, Éléments de droit pénal, a treatise published in 1855 by Joseph Louis Elzéar Ortolan, who held the first chair in comparative penal legislation at the University of Paris. According to Ortolan, the last “fourteen centuries” – dating back to the medieval “foundation of modern nations” – witnessed a continuous “progress of ideas on penality”13. Medieval forms of criminal punishment had been “cruel, unequal, arbitrary”14. But
- 15 Ibid.
[f]inally, the penalties are humanized, balanced, determined: no more revenge; the scientific principle becomes that of justice united with social necessity, repression with mercy, and correction15.
Émile Garçon, who held the same chair that Ortolan once occupied, made much the same point nearly three-quarters of a century later. According to his 1922 treatise, Le droit pénal: origines, évolution, état actuel, the history of criminal law was a trajectory from primitive cruelty to civilized justice:
- 17 J. Berriat-Saint-Prix, “Des Procès intentés aux animaux”, Thémis ou Bibliothèque du jurisconsulte, (...)
- 18 Berriat-Saint-Prix, p. 196.
- 19 Ibid.
- 20 Ibid., p. 194.
11As they began to emerge in the early decades of the nineteenth century, French histories of animal prosecutions were a product of the contemporary turn to legal history, enabling jurists to demonstrate their mastery of archival and other primary-source materials and to highlight the progressive direction of the nation’s legal, social, and political development. An initial text along these lines was published in the very first volume of Thémis, issued in 1819. In an article entitled “Des Procès intentés aux animaux”, Jacques Berriat-Saint-Prix, a professor of civil procedure and criminal legislation in the Paris Law Faculty, set out to address whether reports that animals were criminally prosecuted in the Middle Ages could be verified as historically accurate17. That these reports sounded so extraordinary to modern ears made them an ideal object for historical examination, calling for the deployment of new scientific techniques of source-based research. Reviewing several reports from the sixteenth and seventeenth centuries, Berriat-Saint-Prix suggested that these were of dubious veracity in that they were penned by men who “were not contemporaries of the authors of these anecdotes, and they do not cite precisely the sources from which they derive” their accounts18. In contrast, a number of “other authorities” claiming the existence of animal prosecutions were credible, such that “we have been forced to recognize the reality of these procedures, which had seemed unbelievable to us”19. Having thus brought to bear the latest historical methodology to assess the veracity of purported animal prosecutions, Berriat-Saint-Prix went on to observe, in typically historicist fashion, that these medieval practices were consistent with “[t]he ignorance and the superstition of the time” – an era left behind in the wake of historical progress20.
- 21 V***** [Vernet], “Lettre adressée aux Éditeurs de la Thémis, sur les procès faits aux animaux”, Thé (...)
- 22 Vernet, p. 42-43.
- 23 Berriat-Saint-Prix, “Lettre”, p. 46 (referring to Berriat-Saint-Prix, Rapport et recherches).
- 24 Berriat-Saint-Prix, Rapport et recherches, p. 27-47.
- 25 Ibid., p. 20.
12Berriat-Saint-Prix’s initial foray into the history of animal prosecutions would spark further work of this sort. In 1826, Thémis published an article penned by an anonymous author (later identified as Vernet), who claimed to have been Berriat-Saint-Prix’s student, as well as the teacher’s response21. Through his own reading of sources, Vernet confirmed Berriat-Saint-Prix’s finding that animal prosecutions had in fact occurred, as well as his conclusion that these must be attributed to the “the rust of the middle ages” – a period in which judges were “narrow-minded” and “ridiculous”, and lawyers were “enemies of common sense”22. Expressing gratitude for Vernet’s further research, Berriat-Saint-Prix responded by noting that he had cited it in his own continued writing on the topic – in particular, in a report that he delivered to the Société royale des antiquaires, which was thereafter published in 182923. In that publication, Berriat-Saint-Prix further developed and highlighted his methodological contributions, offering a detailed chronological list of documented prosecutions, as well as examples of the supporting archival documentation24. So too, he insisted once again that animal prosecutions were “contrary to reason and humanity” and that they had been “banish[ed]” as a result of “the progress of enlightenment”25.
- 26 L. Ménabréa, De l’origine, de la forme et de l’esprit des jugements rendus au Moyen-Âge contre les (...)
- 27 Ménebréa, De l’origine, p. 6.
- 28 Ibid., p. 134-67.
- 29 Ibid., p. 4.
13A few decades later, in 1846, Léon Ménabréa, a judge on the Court of Appeals of Chambéry and author of many works of history, published a new book on the history of animal prosecutions: De l’origine, de la forme et de l’esprit des jugements rendus au moyen-âge contre les animaux26. Eager to demonstrate his methodological prowess as a historian, Ménabréa criticized Berriat-Saint-Prix’s 1829 text for failing to conform to the highest standards of modern historical research. In his words, “though very interesting”, it “leaves a lot to be desired” in that “it consists of little more than scraps gathered here and there, without connection and without system”27. With an eye toward providing the comprehensive account that he claimed had eluded Berriat-Saint-Prix, Ménabréa concluded his text with an extensive appendix of “documents” – including court judgments – designed to demonstrate the veracity and methodological soundness of his historical claims28. And like his predecessor, he depicted the history of animal prosecutions as evidence of the progressive evolution of criminal law, suggesting that such prosecutions were the product of a bygone primitive era in which “disorder hovered over society”29.
- 30 There were also occasional accounts of the history of animal prosecutions produced by non-jurist an (...)
- 31 É. Agnel, Curiosités judiciaires et historiques du Moyen Âge: Procès contre les animau,x, Paris J. (...)
- 32 Agnel, p. 5.
- 33 A. Sorel, Procès contre des animaux et insectes suivis au Moyen Âge dans la Picardie et le Valois, (...)
- 34 Sorel, p. 1.
- 35 Ibid.
14Despite Ménabréa’s claim to have written the definitive historical account of animal prosecutions, similar texts would appear throughout the remainder of the century. Although a comprehensive overview is beyond the scope of these pages, some generalizations are possible. Like the work of Berriat Saint Prix and Ménabréa, many of these texts were written by jurists and were characterized by an emphasis on historical methodology, as well as a historicist insistence on the progressive nature of legal and social development30. Consider, for example, Curiosités judiciaires et historiques du Moyen Âge: Procès contre les animaux, published in 1858 by Émile Agnel, a Paris-based lawyer and author of several legal histories31. Highlighting that his text was based on “scrupulous research”, Agnel proudly proclaimed that this research enabled him “to establish the existence” of these “more or less absurd practices” of an earlier era32. Likewise, Alexandre Sorel, a judge in the Court of Compiègne and president of various historical societies, devoted an 1877 book to the topic of Procès contre des animaux et insectes suivis au Moyen Âge dans la Picardie et le Valois33. Like his predecessors, Sorel emphasized that through modern techniques of historical research, he had “brought to light from the dust of the archives” numerous documents clearly establishing that animal prosecutions were common in the Middle Ages34. Tying these “peculiarities” to the era’s supposedly primitive mindset, he concluded that “thanks to the benefits of civilization, […] animals have resumed their place in the order of creation”, such that the dangers they pose are now addressed “without any form of trial”35.
- 36 Rabban, p. 4-5. For a broader discussion of the influence of the German Historical School on contem (...)
- 37 Ibid.
- 38 P. Beirnes, “The Law Is an Ass: Reading E. P. Evans’ The Medieval Prosecution and Capital Punishmen (...)
15Like their French counterparts, nineteenth-century American jurists were deeply influenced by the German Historical School and enthusiastically embraced legal-historical research, focusing especially on the Middle Ages36. But no comparable literature on the history of animal prosecutions emerged in the United States in this era. American jurists who turned to history wrote primarily about the medieval roots of English law, understood to constitute the Teutonic origins of the modern American state37. It is perhaps this focus on England, combined with the fact that most documented animal prosecutions took place on the continent, that explains Americans’ lack of interest38. But whatever the explanation, American jurists did not write their own histories of animal prosecutions. That said, occasional references to this history appeared in law-journal publications throughout the remainder of the century. And as in the case of the French literature, these aimed to highlight the significant distance traveled between the primitive past and civilized modernity.
- 39 “Prosecutions against Animals”, American Jurist and Law Magazine, 1, April 1829, p. 223-37; L. M. F (...)
- 40 Prefix to “Prosecutions against Animal”, p. 223.
16It would take some time for a robust legal literature to emerge in the new United States, and as noted by Lawrence Friedman, that which appeared was on the whole “rigorously practical”, rather than aimed at questions of more purely intellectual interest. But the very first volume of American Jurist and Law Magazine, published in Boston in 1829, included an article entitled “Prosecutions against Animals”39. This was a verbatim translation of the pieces by Berriat-Saint-Prix and Vernet that had appeared in Thémis in 1819 and 1826. In a brief prefix to the article, the journal editors observed that the facts related were “very curious” and should be of interest to readers as an example of medieval ignorance – in short, “as a part of the history of superstition”40.
- 41 “Trial by Jury”, Bench and Bar, New Series 1, July 1871, p. 123-34.
- 42 Ibid., p. 123-26.
- 43 M. E. E. Kerr, “Animals in Court”, Green Bag, 14, 1902, p. 264.
17Similar articles alluding to the history of animal prosecutions emerged in the ensuing decades. For example, an 1871 issue of Bench and Bar, published in New York, included an article decrying “trial by jury” as “a relic of the past, [...] hardly less absurd and vicious than the ‘Trial by Battle’, or ‘Ordeal’”41. In so arguing, the author looked to the history of animal prosecutions as a prime example of the extent to which earlier periods were marked by a primitive irrationality – “sometimes farcical, and sometimes tragical” – that was finally being overcome in modernity42. Such progress-oriented references to the history of animal prosecutions continued even into the twentieth century. As late as 1906, an author in the American legal magazine, Green Bag, published a short piece on “Animals in Court”. Spanning only one and a half pages, the article pointed to the history of animal prosecutions, documented elsewhere, as a striking example of medieval backwardness, quite “[c]urious [...] in this day and generation of enlightenment”43.
II. The Second Wave: The Influence of Positivist Criminology and the Movement against Animal Cruelty
18Alongside the initial historical literature on animal prosecutions that began to be published in France in the early and middle decades of the nineteenth century, there emerged in the closing years of the century another type of historical narrative that would come to dominate. Appearing first in Europe and then in the United States, this second wave of literature was sparked by two developments, both of which stemmed in part from the rise of evolutionary science – namely, the birth of positivist criminology and of a social movement against animal cruelty. Initially penned by scholars who founded the new field of criminology, this literature quickly entered the broader domain of popular culture, serving as a vehicle for addressing difficult questions of criminal punishment and animal rights.
A. Positivist Criminology
- 44 The literature on Lombroso and the rise of positivist criminology in both Italy and France is sizea (...)
- 45 R. A. Nye, Crime, Madness, and Politics in Modern France: The Medical Concept of National Decline, (...)
19Positivist criminology first emerged in late nineteenth-century Italy with the work of the highly influential and controversial physician, Cesare Lombroso. But Lombroso’s ideas soon spread, profoundly shaping legal thought and practice elsewhere, including in France and the United States. Although there were significant differences of opinion within the new field, the discipline as a whole was a product of the increased prominence of evolutionary science and attendant Social Darwinism. The notion that humans had evolved from animals undermined the presumed dividing line between man and beast, central to Enlightenment-era legality and its presumption of the morally responsible individual. According to the new criminology, criminals were those who inherited atavistic traits that, while perhaps useful to human flourishing in an earlier era, were ill-suited to modern life44. The implication was that criminal punishment was justified, not as a means of moral retribution, but instead purely for purposes of “social defense”45. But what precisely did this mean for practices of punishment? Ought punishment to be mild, since the criminal was not morally to blame? Or was it to be harsh, so as to ensure appropriate incapacitation? As criminologists struggled to grapple with these challenging questions, they looked to the history of animal prosecutions.
- 46 See, for example, Horn, p. 38-51; P.-O. Dittmar, “Le Propre de la bête et la salle de l’homme”, Ada (...)
- 47 C. Lombroso, “Il delitto negli animali”, Archivio di psichiatria, scienze penali ed antropologia cr (...)
- 48 Ibid.
20Animals were central to Lombroso’s reconceptualization of the origins of crime and the purposes of criminal punishment46. In an 1881 article entitled “Il delitto negli animali”, Lombroso hypothesized that there must be equivalents of crime in the animal world. Criminal behavior among animals, he suggested, is that which constitutes “the exception rather than the rule” – namely, “a departure from the habits of the majority”47. He then proceeded to identify various forms of criminal deviance said to be found among animals. Describing these in strikingly anthropomorphic terms, he argued for example that “just as in men”, passionate “love” can provoke “abnormality or disease”48.
- 49 Ibid., p. 444.
21Having asserted that criminality was found among animals, and not just humans, Lombroso turned to the history of animal prosecutions as evidence in support of his claim that criminality is rooted in humankind’s evolutionary development. Although many dismissed animal prosecutions as the product of a primitive past, he insisted that medieval jurists were wise to recognize the fundamental commonality between animals and humans and to structure punishment accordingly. The theory of crime and punishment that dominated in the Middle Ages was one that presumed “true wickedness” from the mere fact of the crime committed49. Pursuant to this logic, it made perfect sense to prosecute for murder plants that trapped and devoured insects. In Lombroso’s words,
- 50 Ibid.
in the Middles Ages, when the jurists were more sincere and logical in their convictions, they judged and condemned plants and animals50.
- 51 Ibid., p. 445-46.
- 52 Ibid., p. 445.
In contrast, in the modern era, even as science demonstrated the commonality between animals and humans – and even as crime was recognized to be a product of inherited traits, rather than free choice – practices of criminal punishment remained untethered from this knowledge. The better path, Lombroso urged, was to recognize that, just as the plant devouring the insect acts out of inherited instinct and therefore cannot be held criminally responsible, so too, human behavior deemed criminal ought to be viewed as the “necessary effect of heredity and […] organic structure”51. From this perspective, he concluded, medieval animal prosecutions “appear to us more logical” than the present-day decision to prosecute “graphomaniacs” like Giovanni Passanante, who attempted to assassinate Italy’s King Umberto, and Charles Guiteau, who assassinated U.S. President Andrew Garfield52.
- 53 C. Lombroso, Criminal Man, trans. M. Gibson and N. Hahn Rafter, Durham (N.C.), Duke University Pres (...)
- 54 Ibid., p. 173-74.
22Lombroso further developed these ideas in the third edition of his masterwork, L’uomo delinquente, appearing in 1884. Observing that “ancient people were probably right to convict and punish animals that behaved dangerously”, he argued that earlier societies understood what later came to be forgotten – namely, the profound parallels between animal and human nature. More particularly, “criminal tendencies” can be found “among all creatures, even within the most civilized races”53. In so asserting, Lombroso implicitly rejected the view, dominant in the first wave of historical literature, that the medieval past was profoundly marred by superstition and ignorance. Instead, he suggested that the Middle Ages held important implications for the present, highlighting the need to remake criminal justice in ways more in line with the dawning recognition that crime is a product of inheritance. From this perspective, methods of “kind treatment” long deployed to manage domesticated animals – and widely recognized to be “more effective than brutal methods of punishment” – might also be used to manage human deviants54.
- 55 Kaluszynski, p. 41-57; Nye, p. 103-27; Renneville, “La reception de Lombroso en France (1880-1900)” (...)
- 56 A. Lacassagne, De la criminalité chez les animaux, Lyon, Imprimerie L. Bourgeon, 1882, p. 3. This p (...)
- 57 Ibid., p. 7-21.
- 58 Ibid., p. 3.
23Following Lombroso’s lead, other scholars involved in developing the new field of criminology likewise looked to the pre-modern history of animal prosecutions. Alexandre Lacassagne, a French professor of forensic medicine who would go on to found a competing French school of criminology, helped further to enshrine the linkage between the history of animal prosecutions and modern criminological thought. Drawing on a neo-Lamarckian emphasis on the role of environment in determining evolutionary development, the French school would distinguish itself from its Italian counterpart by insisting that social milieu plays a key part in shaping criminal disposition55. But in 1882, at a time that he had yet to distance himself from Lombroso, Lacassagne published a text concerning criminality among animals, noting that “the idea for this work was suggested to us by our friend, Professor Lombroso from Turin”56. Much like Lombroso, Lacassagne detailed criminal activity among animals, categorized according to the evolutionarily-determined instinct said to be responsible – including instincts to pursue food, to reproduce, and to destroy whatever impedes the fulfillment of the organism’s desires57. In so doing, he prefaced his analysis with a “historical introduction”, aimed at tracing “the relationship that human laws in different societies have established between men and animals”58.
- 59 Ibid. Among the contemporary physicians who explored the history of animal prosecutions through the (...)
- 60 Lacassagne, De la criminalité, p. 3-4.
- 61 Ibid., p. 4.
- 62 Ibid., p. 3 and 6.
24According to Lacassagne, “[p]rimitive peoples” understood “instinctively in their simplicity” – as a kind of animal instinct – that animals and humans are fundamentally akin59. In their eyes, “the animal is considered to be like the man”, such that “[f]or a long time, […] [animals] had the same rights and during the entirety of the middle ages they participated in religious ceremonies”60. Consistent with the fact the “the rights of animals were thus recognized”, so too “their obligations toward man did not escape the attention of the first legislators, who punished severely their crimes or attempts against human life”61. Accordingly, as Lacassagne detailed, criminal prosecutions of animals occurred throughout much of human history – dating back to the ancient world and flourishing in Europe from the Middle Ages through the eighteenth century. Discussing various examples of such prosecutions, he observed that earlier generations “placed on a perfectly equal footing the penalties that had to be meted out to men or to animals guilty of crimes” – at least in so far as animals were accused of harming humans, rather than other animals62.
- 63 Ibid., p. 3.
- 64 Ibid., p. 21.
25Lacassagne gestured toward – though never fully developed – the implications of this history for present-day practices of punishment. Like Lombroso, he suggested that medieval practices ought not to be dismissed as necessarily primitive, but instead embraced as an important source of learning about human and animal nature. On this view, earlier generations were wiser in that they were not bound by the “metaphysical subtleties” propagated by later thinkers, who mistakenly developed a “clear separation between the actions of man and those of animals”63. And much like Lombroso, he implied that to learn from the wisdom of the past was to embrace forms of penal mildness. More particularly, just as “[d]omestication and an appropriate diet diminished, made disappear, or transformed some of the deplorable traits” found among certain animals, so too, much the same could be achieved with human populations, thereby reducing crime without the need to resort to cruel, pain-inducing forms of punishment64.
- 65 M. Pifferi, “Punishment and Social Control in Historical Perspective”, Oxford Research Encyclopedia (...)
26While Lombroso and Lacassagne alike insisted that positivist criminology and its recognition of a fundamental commonality between humans and animals pointed to penal mildness, there were some who reached much the opposite conclusion. Especially as criminological debates extended beyond the scholarly realm and into the broader public sphere, the new discipline’s potential as a tool for harshness became increasingly evident, highlighting the Janus-faced nature of its implications for punishment. As Michele Pifferi observes, “from the very beginning of criminological positivism, it was clear that […] [its] humanitarian argument was neither absolute nor indisputable” and that it included a “dark side”, pointing toward “neutralization or elimination of those offenders who were labelled abnormal, unreformable, incorrigible, or born criminals”65. It is impossible within these pages to canvas the full range of public commentary that drew on the history of animal prosecutions to reflect on criminology and its lessons for criminal punishment. But two key figures in this regard were Arvède Barine and Edward Payson Evans. One French, the other American, both went further than Lombroso and Lacassagne in more expressly gesturing toward criminology’s “dark side”.
- 66 W. Walton, “Frondeuses and Feminists in the Work of Arvède Barine (1840-1908)”, French Politics, Cu (...)
- 67 A. Barine, “Physionomie du criminel, d’après M. Lombroso”, Revue politique et littéraire, Revue ble (...)
- 68 Ibid., p. 209-10. On Barine’s support for eugenics, see Walton, p. 96 and 99-100.
27Arvède Barine was the gender-ambiguous pseudonym adopted by the popular late-nineteenth-century author, Louise-Cécile Vincens. Known for publishing a wide range of historical and journalistic pieces, Barine was respected by criminologists in both Italy and France and played a key role in transmitting the theories of Lombroso and Lacassagne to a broader audience. Indeed, she was hailed by Lombroso himself as “one of my most valiant companions in arms”, and her writings appeared in the leading French journal on criminology, edited by, among others, Lacassagne66. In 1898, Barine published an article in this journal entitled “Procès à des animaux”, which reviewed the historical literature on animal prosecutions, a topic of enormous interest, we have seen, to contemporary criminologists eager to establish that human and animals are fundamentally akin. In elsewhere addressing the policy implications of this criminological insight, Barine made clear that these were, in her view, revolutionary, rendering a “total upheaval” of practices of criminal punishment67. Newly emerging practices of punishment, she concluded, “will not be cruel”, but through the deployment of techniques like eugenics, “will be imbued with the harshness produced by indifference” – namely, the harsh “indifference of nature” itself 68.
- 69 As is well known, the United States has come to diverge from Europe in adopting a distinctively har (...)
- 70 N. Humphrey, foreword to Evans, The Criminal Prosecution, p. XXVIII.
- 71 E. Payson Evans, “Bugs and Beasts Before the Law”, The Atlantic Monthly, August 1884, p. 235-46; E. (...)
28It was, perhaps not surprisingly, an American, Edward Payson Evans, who developed an account of the history of animal prosecutions that most fully and overtly embraced penal harshness69. A one-time professor of modern languages at the University of Michigan, Evans resigned his position in 1870 to live in Germany, where he worked as a journalist and continued to engage in scholarly research – until finally returning to the United States on the outbreak of the First World War. Having “become a permanent feature of the Royal Library” in Munich, he immersed himself not only in the historical records, but also in the heady literature on criminology then sweeping across Europe and making its way to the United States70. In this context, he published two short articles on animal prosecutions that appeared in the popular, Boston-based literary magazine, The Atlantic Monthly, in 1884, soon after Lombroso and Lacassagne wrote their initial, influential accounts of criminality among animals. The first article, published in August, provides an overview of such prosecutions, and the second, appearing in September, examines the implications of this history for modern theories of criminal punishment71. As this suggests, Evans’ interest in the history was directly linked to his efforts to grapple with modern, positivist criminology.
- 72 Friedland, p. 9.
- 73 Evans, The Criminal Prosecution, p. 234-35.
29Drawing on (and significantly expanding) these two articles, Evans published a book in 1906 – The Criminal Prosecution and Capital Punishment of Animals – that, in the words of the historian Paul Friedland, quickly became and remains “the most widely read text on the subject of animal trials”72. Citing, among others, Lombroso and Lacassagne, Evans argued that the growing body of research highlighting the parallels between animal and human nature raised profoundly difficult challenges to criminological policy73. In his words,
- 74 Ibid.
if the mental and moral qualities of the lower animals differ from those of man, not in kind, but only in degree, and the human mammal is descended from a stock of primate, […] it is difficult to determine the point at which moral and criminal responsibility cease in the descending, or begin in the ascending scale of being74.
Given the difficulty of line-drawing, how precisely was criminal punishment to operate? And how was it to situate itself vis-à-vis the long, pre-modern history of animal prosecutions? In other words,
- 75 Ibid., p. 236-37.
does evolutionary criminology justify the judicial proceedings instituted by mediaeval courts against animals or regard the typical human criminal as having in this respect no supremacy over the beast75?
- 76 Ibid., p. 237.
- 77 Ibid., p. 203.
30According to Evans, the view that animals and humans are fundamentally akin had given rise in the writings of many modern criminologists to a mistaken and dangerous commitment to penal mildness. From this perspective, the fact that we “abolish[ed] judicial procedure against quadrupedal beasts” implied that we are “logically forced to stay the hand of justice uplifted against bipedal brutes”76. Claiming that the “Italian anthropologists and jurisprudents” had “gone farthest” in developing the case for penal mildness, Evans lay the blame on their race, thus ironically deploying against these authors their own often racialized mode of argument. “[T]he Italian temperament”, he asserted, is marked by “a peculiar gentleness and impressionableness of character”77. As a result of their temperament, these criminologists had rooted
- 78 Ibid., p. 204.
crime in hereditary propensities, atavistic recurrences, physical degeneracies and other organic fatalities, for which no one can be held personally responsible78.
The end result was to
- 79 Ibid.
stimulate [...] the ingenuity of lawyers and legislators to discover mitigating moments and extenuating circumstances and other means of loosening and enlarging the intricate meshes of the penal code so as to permit the culprit to escape79.
- 80 Ibid., p. 203-05. On the view that Anglo-Saxon law was Germanic in nature and origins, see Rabban, (...)
Even worse, while “[t]his maudlin sympathy with the guilty […] man” was especially evident among Italians, “it extends to all civilized nations”, reflecting “a general tendency of the age” that could be found even among the hard-nosed Germans – with whom contemporary American lawyers and historians so commonly associated the Anglo-Saxon roots of Anglo-America and its common law80.
- 81 Evans, The Criminal Prosecution, p. 210-11.
31Embracing an undertone lurking just beneath the surface of the writings of European scholars and commentators, Evans advanced a full-throated plea for penal harshness. He argued that if humans and animals are fundamentally akin – and if “punishment is proper and imperative so far as it is essential to the protection and preservation of society” – then dangerous humans ought to be treated just like ferocious beasts81. The path forward was to “reduce […] confirmed criminals to the condition of ferocious beasts and venomous reptiles” – an end goal that
- 82 Ibid., p. 212.
logically demands that they should be eliminated for precisely the same reason that noxious animals are exterminated, although neither the human nor the animal creatures are to blame for the perniciousness of their inborn proclivities and natural instincts82.
- 83 Ibid., p. 222.
Indeed, “the more corrupt […] [the criminal] is by his physical constitution and therefore the less culpable he is from a moral point of view, the more severe should be the sentence pronounced upon him,” since “the only safety is in the elimination of the individual, just as the only remedy for a gangrened limb is in amputation”83.
B. The Movement against Animal Cruelty
32If the equation of animal and human criminality had implications for the criminal punishment of humans, then so too, it soon became clear, it had implications for the treatment of animals. As criminologists and public commentators turned to the history of animal prosecutions in debating what criminology meant for the nature and purposes of punishment, they began to draw connections between these debates and the growing social movement for the prevention of cruelty to animals. In the process, they raised difficult, still contested questions about the law’s treatment of animals, including most fundamentally, whether animals bear legal rights of their own.
- 84 D. Donald, Women against Cruelty: Protection of Animals in Nineteenth-Century Britain, Manchester; (...)
- 85 J.-Y. Bory, La Douleur des bêtes: La polémique sur la vivisection au xixe siècle en France, Rennes, (...)
- 86 D. L. Beers, For the Prevention of Cruelty: The History and Legacy of Animal Rights Activism in the (...)
33In the early to middle decades of the nineteenth century, civil-society groups urging the more humane treatment of animals began to emerge on both sides of the Atlantic. The United Kingdom took the lead, enacting Martin’s Act in 1822, a statute that prohibited the cruel treatment of horses, oxen, and other domesticated animals. And in 1824, the Royal Society for the Prevention of Cruelty to Animals was established84. Soon thereafter, France and the United States followed suit. In 1845, an organization devoted to animal protection, the Société Protectrice des Animaux, was created in France, and it played a key role in the enactment of the Grammont Law, which likewise punished animal abuse85. Similarly, the American Society for the Prevention of Cruelty to Animals was established in the United States in 1866. This was followed by the creation by 1900 of about seven hundred like-minded organizations operating throughout the country, which devoted themselves to pursuing anti-abuse legislation at the state level86.
- 87 See generally Donald, Women against Cruelty, and Carrié, “‘Vraies protectrices.’” See also Beers, p (...)
- 88 H. Ritvo, The Animal Estate: The English and Other Creatures in the Victorian Age, Cambridge (MA), (...)
34An extensive literature seeks to make sense of the burgeoning transatlantic movement against animal cruelty. Pointing to the key role played in this movement by white middle and upper-class women in the United Kingdom, France, and the United States, some have emphasized the rise of first-wave feminism. As these scholars note, many of the women reformers who demanded legislation to protect animals also pursued similar initiatives on behalf of women and children. In so doing, they asserted a form of gendered political authority rooted in the notion that, as women, they were distinctively able to attend to the needs of the weak and disadvantaged87. Others, in turn, have linked the campaign for animal protection to the rise of industrial capitalism, suggesting that demands to prevent the cruel treatment of animals were a mechanism of social control – a means by which elites sought to shape the behavior (and ensure the quiescence) of those lower in the social echelon88.
- 89 Whether the new legal protections that animals were receiving followed from a recognition of their (...)
35But whatever the more immediate social and political roots of the movement against animal cruelty, its core conceptual underpinning was the new evolutionary science and its lesson that humans and animals were fundamentally akin. This lesson suggested a need to rethink the treatment not only of deviant humans, but also of deviant animals. The end result was to raise difficult, still-contested questions about the legal foundations of newly enacted animal protections. Should these be framed in human-centric terms (as for example, an effort to curb human tendencies toward violence and thereby deter crime) or be seen instead as reflecting a conception of animals as entitled to their own legal rights89?
- 90 Lacassagne, De la criminalité, p. 3.
- 91 H. Duméril, Les animaux et les lois, Paris, Ernest Thorin, 1880, p. 5-6
- 92 Ibid., p. 12.
- 93 Ibid., p. 19.
36Lacassagne himself hinted at, though never fully developed, an argument about what the history of animal prosecutions implied for the modern-day treatment of animals. In his 1882 piece on criminality among animals, he observed that “in the making of our [modern-day] codes, a law protecting animals was completely forgotten”90. In this way, he implied a need to rethink the punishment of animals, and to do so in ways that would ensure more humane treatment. This argument was advanced more fully by Henri Duméril, the librarian of the University of Toulouse and holder of a doctorate in law. In an 1880 text entitled “Les animaux et les lois”, Duméril set out to trace the history of the law’s approach to animals. The law, he argued, long invested animals with a certain dignity, as reflected in its efforts both “to punish them for the damages they caused” and “to protect them against ill-treatment”91. He thus detailed the history of animal prosecutions alongside an account of “the protection that was granted to animals in the past and that which they continue to be afforded today”92. As he noted, the obligation to protect animals had been forgotten for some time, but fortunately, recent years had witnessed its rediscovery, as reflected in the enactment of Martin’s Act and the Grammont Law93.
- 94 A. Barine, “Procès a des animaux”, Archives d’anthropologie criminelle, de criminologie et de psych (...)
- 95 Ibid.
- 96 Ibid.
37At the very end of the century, Arvède Barine likewise suggested that new insights into evolutionary science and the animal nature of humankind pointed toward a kinder approach to the treatment of animals. According to Barine, the fact that medieval and early-modern European courts long heard criminal prosecutions against animals was proof positive of the wisdom of earlier generations, which “viewed the rest of creation with less pride”94. In her view, it was precisely because the insect was understood to have “the same rights as man to live” that, as a logical consequence, it was believed necessary “to impose on […] [them] respect for the law, and to punish them when they transgressed”95. Noting that “[w]e are in this respect in significant regression vis-à-vis the past”, she concluded that it was high time for humans to abandon “[t]he habit [that] prevents us from noticing the ferocity of our behavior towards animal species which have the misfortune to be harmful to us, or simply useless” and instead to become conscious of “[t]heir needs and their suffering”96.
- 97 E. Payson Evans, Evolutional Ethics and Animal Psychology, New York, D. Appleton & Co., 1898, p. 13 (...)
- 98 Evans, Evolutional Ethics, p. 3.
- 99 Ibid. (quoting Frances Power Cobbe, The Ethics of Zoöphily).
- 100 Ibid., p. 12-13.
- 101 Ibid., p. 13.
- 102 Ibid., p. 14.
38The link between the history of animal prosecutions and animal rights was also central to the writings of Edward Payson Evans, leading him to call for deviant animals to be protected from “human cruelty”, even as he urged that human criminals be “exterminated” like “noxious animals”97. In a book that appeared in 1898, Evolutional Ethics and Animal Psychology, Evans argued that evolutionary science demonstrated that the “absolute and abysmal chasm between man and all other sentient organisms”, long posited by Christian theology, had in fact “no real existence as a fixed, final, and impassable barrier” and had instead “resolved itself into a wavering, indeterminable, and almost evanescent line of demarcation”98. At the same time, research showed that the “‘metaphysical and ethical systems of bygone times’” were “‘in better accordance with our present anthropology and psychology’” in that they were premised on the fundamental biological parallels between humans and animals99. In line with this understanding, earlier societies, including “Christian nations” from the Middle Ages onward, prosecuted animals for their crimes100. The implication of this practice, Evans insisted, was that just as “animals may be rendered liable to judicial punishment for injuries done to man”, so too, “they should […] enjoy legal protection against human cruelty”101. But it was only very recently that this logical implication was understood, resulting in the enactment of “penal laws” that, in his view, were rooted in a conception of (and aimed to vindicate) “animals’ rights”102.
III. Twentieth-Century Animal Prosecutions: The Example of Bobs
39The first wave of historical literature on animal prosecutions claimed that the practice had ceased by the nineteenth century – a fact that helped to establish a definitive break between enlightened modernity and the primitive past. But in line with the second wave’s insistence that atavistic remnants of the past persisted into the present, a new periodization emerged – one that denied any sharp break with the past and insisted instead that animal prosecutions had continued into the present. As a formal matter, these recent prosecutions were against the human owner, rather than the animal itself. But to many commentators, this distinction appeared to be a mere technicality.
- 103 Evans, “Bugs and Beasts Before the Law”, Evans, “Mediaeval and Modern Punishment”, “A Dog Tried for (...)
- 104 On payment of a fine, the chimpanzee was eventually released. “Des singes qui vont dans le monde”, (...)
- 105 See, for example, Train, On the Trail, p. 126 (discussing a foxhound in Kentucky charged with murde (...)
- 106 The following are some examples of the transatlantic coverage: “The Dog’s ‘Arrest’”, Evening Standa (...)
40Articles addressing such modern-day animal prosecutions appeared in both the French and American popular press, including the Paris-based L’intermédiaire des chercheurs et curieux and Le progrès civique, as well as the Boston-based The Atlantic Monthly, and the New-York based Munsey’s Magazine103. Among the more widely discussed prosecutions was that of a circus-act chimpanzee who had been trained to smoke a cigarette as part of his act. In a performance held in South Bend, Indiana in 1905, the chimpanzee lit a cigarette and was immediately issued a criminal summons for violating state legislation prohibiting smoking in public104. A number of other prosecutions also received extensive coverage, sometimes but not always on both sides of the Atlantic105. But it was one case in particular – the British prosecution of a dog named Bobs in 1919 – that came to be something of an international cause célèbre, becoming the subject of newspaper articles appearing not only in the United Kingdom, but also in France, the United States, Canada, and Spain106.
- 107 See the newspaper articles listed above in n. 106.
41Bobs belonged to a London-based family and was described as the particular favorite of a photogenic young girl in the household. One day, he was out on the street and a policemen determined that he was dangerous. The accounts vary as to why precisely this determination was made. Some suggest that Bobs bit the policeman, others that he got into a fight with another dog, and yet others that he snapped at pedestrians while not wearing a muzzle. Whatever the precise cause of the policeman’s assessment, the end result was a local magistrates’ court order that Bobs be put down – or as was widely reported in the press, that he be “sentenced to death”107.
- 108 A. W. Bates, Anti-Vivisection and the Profession of Medicine in Britain: A Social History, London, (...)
- 109 “Death Sentence Quashed: ‘Bobs’ Appeal Succeeds”.
- 110 “Bob ne sera pas exécuté, Il est acquitté en appel”.
- 111 “Dogs to Get Day in Court”.
42Founded a few decades earlier, in 1891, the National Canine Defense League heard of Bobs’ plight and worked to galvanize public pressure for a stay of execution, collecting over twenty thousand signatures demanding a reprieve. So too, the League hired the highly regarded barrister, Sir Henry Curtis Bennett, to advocate on Bobs’ behalf in an appeal that entailed the full panoply of court procedures, including the calling of multiple witnesses – not least, Bobs himself108. Ultimately, the justices deciding the case determined that Bobs was “innocent” and quashed his conviction. As reported in the press, a large crowd of supporters gathered outside the courtroom cheered jubilantly on learning the verdict. This verdict and its aftermath were, in turn, conveyed to readers unable to attend the proceedings through extensive newspaper coverage. The British Daily Mirror filled the entire front page of its October 11 issue with photos of the participants and the proceedings – including Bobs himself wearing a “Not Guilty” sign around his neck – all displayed under the headline, “Death Sentence Quashed: ‘Bobs’ Appeal Succeeds”109. The following day, Le Petit Parisien issued a front-page article under the heading “Bob [sic] Will Not Be Executed, He Is Acquitted on Appeal”110. And a few years later, in August 1925, the New York Times reported at length on “The Great Bobs Case” in a piece discussing proposed legislation in Britain that would grant a formal right to appeal decisions that a dog be “Condemned to Death”111.
Front page of the British Daily Mirror, October 11

Daily Mirror, on microfilm (London, British Library Reference Division), held by Green Media Library, Stanford University
- 112 “Bob ne sera pas exécuté, Il est acquitté en appel”. El Sol, in turn, referred to “British Humor”: (...)
- 113 McNamara, p. 32.
43Newspapers reporting on these cases understood that accounts of formal court proceedings involving animals as defendants afforded a good recipe for sales. Moreover, Le Petit Parisien clearly enjoyed poking a bit of fun at what it described as “a very London Trial”112. But the Bobs case proved compelling to contemporaries also for the deeper reason that it resonated with ongoing debates over criminal punishment and animal rights – both of which had come to be discussed through reflections on the long history of animal prosecutions. As observed in a piece detailing this history that appeared in the University of Notre Dame Law School Magazine in 1927, “dogs can as yet […] be the subjects of judicial proceedings in England”113.
- 114 A. Train, “The Dog Andrew”, Tutt and Mr. Tutt, New York, Charles Scribner’s Sons, 1922, p. 143-85. (...)
- 115 Naturalist authors like Émile Zola and Frank Norris were profoundly shaped by social Darwinism, dep (...)
44In the United States in particular, a popular short story inspired by the Bobs case would further cement the intersection between the history of animal prosecutions and modern-day debates over criminal punishment and animal rights. Appearing in New York’s Saturday Evening Post in November 1919, just one month after the Bobs case was first widely reported in the press, “The Dog Andrew” was written by Arthur Train, a former New York prosecutor, who became a best-selling author of short stories and non-fiction essays114. As a work of literature, “The Dog Andrew” was of a piece with a broad array of contemporary fiction that treated animals as both symbols and protagonists. Inspired in part by evolutionary science and the campaign against animal cruelty, this transatlantic literature included relatively highbrow Naturalist and Modernist works, as well as sentimental narratives centered around animals suffering from abuse115.
- 116 Beers, p. 105-08.
- 117 Carswell, p. 302-32.
- 118 Train and London were in fact acquainted, as they worked together as members of the council respons (...)
45Figuring prominently among the authors of such fiction was the popular and highly regarded American writer, Jack London, whose pleading against animal cruelty would inspire the establishment of Jack London Clubs devoted to animal advocacy soon after his death in 1916116. At the beginning of the century, London published a series of stories in which dogs were the main characters. Avoiding sentimentalism, these drew on scientific accounts of animal behavior that highlighted the extent to which, in the words of one commentator, “the forces driving nonhuman animal behaviors are not unlike those driving human behaviors”117. The most famous of London’s dog stories, “The Call of the Wild”, was first published in 1903 in New York’s Saturday Evening Post – the same venue that would go on some years later to publish Train’s (considerably more heavy-handed) dog narrative118. But while London’s narrative of the dog Buck and his struggle to navigate the borderland between man and beast, civilized society and primordial nature, quickly became a staple of the American literary canon, Train’s account of Andrew and his legal travails has been (justifiably) forgotten. Yet, despite its limitations as a work of art – or perhaps precisely because of these – “The Dog Andrew” affords a valuable window into how contemporary debates over criminal punishment and animal rights percolated into popular consciousness, while also exemplifying their uncertain policy implications.
- 119 Nevins, p. 57-63.
- 120 Papke, p. 211.
46“The Dog Andrew” was one of Train’s many short stories focused on the law office of the (unrelated) criminal defense attorneys, Ephraim and Samuel Tutt. Although initially published in the Post, these were thereafter reissued in book collections, all to enormous contemporary acclaim119. The Tutt stories are viewed today as propagating and reinforcing an idealized conception of American adversarial justice – one that centers around the heroic figure of the lawyer120. But however true this characterization might be of the Tutt stories as a whole, it is very much off the mark when it comes to “The Dog Andrew” – a sardonic tale in which it is far from clear that the Tutts’ success in defending their client represents the triumph of justice and in which the foundations of modern criminal law and the consequent justifications for punishment are subject to withering scrutiny.
- 121 Train, “The Dog Andrew”, p. 150.
47The criminal prosecution at the heart of “The Dog Andrew” emerges from the tempestuous relationship between two couples who are neighbors on Long Island Sound – the Appleboys and the Tunnygates. A troublemaker by nature, Mrs. Tunnygate complains to her husband that the Appleboys extended their porch onto the shared property line. As a means of retaliation, she urges her husband to cross through the Appleboys’ property when heading to the beach. As tensions mount between the two couples, the Appleboys decide to acquire a dog that might deter further trespass. More particularly, they ask Mrs. Appleboy’s aunt to send them her dog Andrew, known to have “made a lot of trouble” in the past121. Although the aunt had been ordered to euthanize Andrew, she evidently failed to do so. As soon as they acquire Andrew, the Appleboys post a sign in their yard, warning of the dog’s presence and forbidding trespassing. Predictably, however, Mr. Tunnygate ignores the warning and attempts to cross through the yard, resulting in Andrew biting him. Mr. Appleboy is thereafter arrested for assault and turns to the law office of Tutt and Tutt for his defense.
- 122 Ibid., p. 157.
48As reported by Samuel Tutt to his senior partner Ephraim, the law office had just “landed a case” that “touches upon doctrines of jurisprudence, of religion and of philosophy, replete with historic fascination”122. Although this statement, like the story as a whole, is presented with a coy nod and a wink, the ensuing narrative does indeed grapple with core issues of justice, serving as a meditation on contemporary debates over criminal punishment and animal rights, as seen through the prism of the long history of animal prosecutions.
- 123 Ibid., p. 156.
49The narrative is structured to challenge the familiar divide between animals and humans and instead to highlight the commonality between them – a central lesson of evolutionary science, as reflected, we have seen, in positivist criminology, the movement against animal cruelty, and contemporary literary developments. The story thus unfolds in ways that underscore the humanity of “The Dog Andrew”, while simultaneously revealing the animalistic nature of the human protagonists. Throughout the narrative, the dog is referred to by his given name, Andrew, setting him on equal, personified footing with the tale’s various human personages. Indeed, when a policeman first arrives at the Appleboys’ home with an arrest warrant, Mrs. Appleboy expresses confusion about whom precisely the officer intends to arrest. Observing that the warrant is for the arrest of her husband, Enoch, she exclaims, “But Enoch didn’t do a thing! […] It was Andrew!”123.
- 124 Ibid., p. 144.
- 125 Ibid., p. 144-45.
- 126 Ibid., p. 152.
50Just as Andrew is depicted as human, so too, the two human couples whose conflict underlies the narrative are portrayed as animals. In explaining that before they acquired meddling wives, Mr. Appleboy and Mr. Tunnygate were on friendly terms, the narrator observes that the two men were drawn to one another through “some mysterious animal magnetism”124. As they spend time together fishing, and thus in the animalistic pursuit of prey, they fail to engage in the defining human activity of speech – breaking their silence only to utter repeated monosyllabic grunts of “‘Huh!’”125. And Mr. Tunnygate’s fateful decision to cross into the Appelboys’ property is described as the product of a bestial instinct for violence that dates backs atavistically to humankind’s primitive, animal-like progenitors. In the narrator’s words, Mr. Tunnygate is moved by a “perverse instinct inherited from our cave-dwelling ancestors”126. Controlled by his emasculating wife, as well as by his own base instincts, Mr. Tunnygate appears entirely lacking in free will and intelligence, responding to the commands of others and of nature – much like a dog.
- 127 Ibid., p. 157.
51But if the dog and the humans are all but indistinguishable, what precisely does this mean for criminal punishment? As the two law partners discuss the case of “The Dog Andrew”, a central question that repeatedly emerges is the proper identity of the defendant. On learning from his junior partner that they had just acquired a new client, Ephraim inquires about the nature of the case, leading Samuel to respond that “[i]t’s a dog case”127. Mistakenly assuming that it is the dog Andrew, rather than his owner, Mr. Appleboy, who is being charged as the defendant, Ephraim launches into a long discourse on the pre-modern history of animal prosecutions. Defending this practice as reasonable and just, he insists that animals and humans are essentially alike and that the two ought therefore to be punished in the same way, regardless of the applicable theory of punishment. In support of this position, he then proceeds to review various such theories.
52Ephraim begins by considering classical, Enlightenment-era theories of punishment, premised on notions of individual free will. He argues that, if punishment presumes moral responsibility – itself hinging on some degree of intellectual aptitude and cognition – both humans and animals ought to be subject to punishment. This is because many animals are as, if not more, intelligent (and thus responsible) than humans:
- 128 Ibid., p. 159.
[A]nyone would have to agree that responsibility for one’s acts should depend upon the degree of one’s intelligence – and from that point of view many of our friends are really much less responsible than sheep128.
- 129 Ibid.
- 130 Ibid. See, for example, Beers, p. 47-49 (noting that the American Society for the Prevention of Cru (...)
- 131 Train, “The Dog Andrew”, p. 159. Train himself would further pursue these linkages between the hist (...)
Likewise, he asserts, to the extent that criminal punishment aims at deterrence, this too affords no reason for excluding animals from punishment. When Samuel claims that animals might not respond to deterrence, querying whether “the punishment would do any good” in the case of a horse, Ephraim acknowledges that deterrence might be difficult to achieve. But if so, he insists, this concern applies equally to humans. In his words, “I wonder if it ever does any good”129. Alternatively, Ephraim suggests, even if criminal responsibility hinges on religiously infused conceptions of the soul, animals and humans ought to be punished alike. Positing the possibility that “animals have souls”, Ephraim observes that he has “seen many an old horse that had a great deal more conscience than his master” – an allusion to then prevalent accounts of animal cruelty in which tales of abused horses figured prominently130. It is humans, he argues, who exhibit true soullessness in that they are often “guilty of extreme brutality” in disciplining animals131.
- 132 A. Storra-Lamarre, La République des faibles, Paris, Armand Colin, 2005, p. 179-86; M. Pifferi, “In (...)
- 133 Train, “The Dog Andrew”, p. 160-61.
53In addition to addressing classical theories of punishment, Ephraim also alludes to modern, positivist theories aimed at social defense and pursued by means of individualization. According to such theories, attention had to be shifted from the crime to the criminal, making it possible to zero in on the crime-inducing traits of the individual deviant and to tailor mechanisms of rehabilitation or incapacitation accordingly132. Ephraim suggests that a positivist theory of punishment premised on individualization might – much like classical theories – be applied to humans and animals alike. In line with his broader tendency toward cynicism, however, he expresses skepticism regarding the likelihood that meaningful individualization will occur among either humans or animals. He thus complains that “after [the age of] twenty-one all [human adults] are held equally responsible”, unless deemed mentally ill – despite the fact that many people lack the “mental capacity to understand the nature of […] [their] acts”133. Likewise, he observes that all animals are treated as lacking capacity, regardless of significant differences between them:
- 134 Ibid., p. 161.
The law has always been consistent [...] and has never discriminated between animals any more than it has between men on the ground of varying degrees of intelligence134.
- 135 Ibid.
And while criminologists tended to associate individualization with penal mildness, Ephraim exhibits skepticism in this regard as well, gesturing toward the dangers of being “subject to the power of discretionary punishment”135.
- 136 Ibid., p. 165.
54Inspired by these ruminations on the history of animal prosecutions and its implications for modern-day criminal justice, Samuel bemoans the fact that the grand jury indicted Mr. Appleboy, and “not the dog, as it is clear from your historical disquisition they should have done”136. Thereafter, at trial, he makes much the same argument to the judge, emphasizing
- 137 Ibid., p. 182.
the impropriety of charging the defendant with criminal responsibility for the act of another free agent even if that agent be an animal137.
- 138 Ibid.
But despite Samuel’s insistence that “[i]f anybody were to be indicted in this case I hold it should have been the dog Andrew”, the judge orders that the trial proceed with a human being as the defendant138. Yet, even as the judge rules in a way that seems to reinforce human responsibility and animal incapacity, the story’s conclusion unsettles this comfortable lesson, continuing to press the question of which being ought to be deemed criminally responsible – and why. Having confirmed Mr. Appleboy as the defendant, the judge orders the jury to return a verdict of not guilty – one premised on a finding that no witness testimony established that Mr. Appleboy had knowledge of the dog’s dangerousness. Yet, at the same time, the narrative hints at another possible explanation of Mr. Appleboy’s acquittal – namely, that the judge himself knew Andrew to be the responsible party.
- 139 Ibid., p. 185.
- 140 Ibid., p. 160.
55Upon adjourning the court, the judge calls Mr. Appleboy to the bench and tells him “‘Don’t do it again!’”. The judge then whispers that he hails from the same small town as Mrs. Appelboy’s aunt and, as a result, has “known Andrew for a long time”139. How should we interpret this ending? On one reading, the fact that everyone in the town knew Andrew to be dangerous means that surely Mr. Appleboy did as well, thus confirming that Mr. Appleboy was responsible, even though the justice system failed to convict him. But alternatively – in line with Samuel Tutt’s assertion that Andrew’s biting of Mr. Tunnygate was “the act of a […] free agent” – the judge’s decision to acquit Mr. Appleboy stemmed from the fact that he was familiar with Andrew and therefore knew he was responsible. The question of who precisely ought to be held criminally liable, and why, thus remained open. As Ephraim puts it, “[t]he field of criminal responsibility is “the No Man’s Land of the law”140.
- 141 See, for example, P. Beirne, Law, Criminology, and Human-Animal Relationships, Lanham, D: Rowman & (...)
56As suggested by “The Dog Andrew’s” ultimate indecision regarding where responsibility ought to lie, the emerging insistence on the commonality between animals and humans was deeply unsettling. Reflected through the historical prism of animal prosecutions, positivist criminology and the movement against animal cruelty raised profoundly challenging questions with which we continue to grapple today. What justifies punishment? Should it be harsh or mild? And how, if at all, ought humans and animals to be treated differently under the law? As criminologists and commentators debated these questions, they drew connections between the seemingly distinct domains of criminal law and animal rights, presaging arguments about their interrelation that have come to the fore in recent years141.
- 142 See the works cited in note 1 above.
57Histories of animal prosecutions continue to be written to this day. These address any number of themes – including the social function of trials, the nature and role of religious ritual, and much like a century ago, the question of whether animals are entitled to rights under the law. Such histories steer clear, however, of reflecting on modern-day practices of criminal punishment142. Especially in the wake of the Second World War and its atrocities, Social Darwinist thought fell into disrepute. As a result, the notion that criminal punishment ought to be in any way based on presumed links between animality and criminality has become anathema, and the history of animal prosecutions has once again come to seem far removed from present-day criminal policy debates.
- 143 D. A. Sklansky, A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice, (...)
- 144 Chevènement himself insisted that he used the term in its horticultural sense, meaning wild stock. (...)
- 145 Paoli, p. 300.
58That said, even as evolutionary science has receded as a defining social discourse and more recent histories of animal prosecutions avoid questions of criminological policy, presumed linkages between animality and criminality continue to resurface in legal and political rhetoric. In the last several decades, anxieties about a racialized criminal underclass in both the United States and France have been expressed through language depicting disfavored racial groups in animalistic terms – as predators or savages, distinctively prone to criminal conduct. In the 1990s, the American political scientist John D. DiIulio, Jr. claimed to have identified a new category of “superpredators” – namely, urban (largely African-American) young men, willing and eager to engage in criminal activity without remorse. Appealing to this language, legislators enacted a wave of harsh criminal statutes that disproportionally targeted urban, Black communities in ways whose legacies endure143. While the French approach to criminal punishment remains considerably milder than its American counterpart, France has also long been gripped by fears of a racialized criminal underclass, consisting primarily of the North African immigrants dwelling in Paris’s impoverished suburbs. In the late 1990s, then Minister of the Interior, Jean-Pierre Chevènement, referred to recidivists in the suburbs in language that seemed to echo the contemporary American rhetoric of superpredators, describing these young men as “sauvageons”, or little savages144. Almost two decades later, his successor, Bernard Cazeneuve, would come under political fire for adopting much the same rhetoric145.
- 146 N. A. Farahany and J. E. Coleman Jr., “Genetics and Responsibility: To Know the Criminal from the C (...)
59The persistent associations between animality and criminality extend, moreover, beyond ongoing struggles with racial injustice. While Social Darwinist thought has long been abandoned, modern-day bioscience now seems poised to fulfill the failed promise of its maligned predecessor, making it possible to link criminality directly to biological inheritance. The new field of behavioral genetics purports to establish correlations between genetic make-up and behavioral characteristics, including those associated with criminality, such as propensities toward violence, impulsivity, and other antisocial behavior. As a result of these scientific developments, jurists and courts on both sides of the Atlantic are now struggling to determine the circumstances under which evidence drawn from behavioral genetics can be deployed in criminal litigation146.
60Accordingly, even as those writing histories of animal prosecutions no longer engage directly with questions of penal policy, the core criminological challenges with which an earlier generation struggled have in no way disappeared. The fear of the animal within continues to haunt.
Notes
1 A substantial literature on the history of animal prosecutions in Europe has been produced in recent decades. This includes: C. Chène, Juger les vers: Exorcismes et procès d’animaux dans le diocèse de Lausanne (xve-xvie s., Lausanne, Université de Lausanne, 1995; G. Francione, Processo agli animali: Bestiario del Giudice, Rome, Gangemi, 1996; P. Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France, Oxford, Oxford University Press, 2012, p. 1-20 and 89-116; J. Vartier, Les Procès d’animaux du Moyen Âge à nos jours, Paris, Hachette, 1970; P. Schiff Berman, “Rats, Pigs, and Statutes on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects”, New York University Law Review, 69, 1994, p. 288-326; E. Cohen, “Law, Folklore, and Animal Lore”, Past & Present, February 1986, p. 6-37; P. Dinzelbacher, “Animal Trials: A Multidisciplinary Approach”, Journal of Interdisciplinary History, 32, Winter 2002, p. 405-21; W. Ewald, “Comparative Jurisprudence (I): What Was It Like to Try a Rat?”, University of Pennsylvania Law Review, 143, June 1995, p. 1898-1943; M. Slabbert, “Prosecuting Animals in Medieval Europe: Possible Explanations”, Fundamina, 10, 2004, p. 159-79; S. Schindler, “Pardoning Dogs”, Nevada Law Journal, 21, Fall 2020, p. 117-60; K. Sykes, “Human Drama, Animal Trials: What the Medieval Animal Trials Can Teach Us about Justice for Animals”, Animal Law, 17, 2011, p. 273-311.
2 B. W. Tuchman, A Distant Mirror: The Calamitous Fourteenth Century, New York, Knopf, 1978.
3 On the late nineteenth-century American turn to Europe, see D. T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age, Cambridge (MA), Belknap Press of Harvard University Press, 1998.
4 There is a very large literature on the rise of historicism in nineteenth-century German. It includes such texts as: J. A. Barash, Politiques de l’histoire: L’historicisme comme promesse et comme mythe, Paris, Presses universitaires de France, 2004; G. G. Iggers, The German Conception of History: The National Tradition of Historical Thought from Herder to the Present, rev. ed., Middletown (CT), Wesleyan University Press, 1983; S. Jollivet, L’historisme en question: Généalogie, débats et réception (1800-1930), Paris, Champion, 2013; D. M. Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History, Cambridge, Cambridge University Press, 2013, p. 63-114; F. Beiser, “Historicism”, The Oxford Handbook of Continental Philosophy, eds. M. Rosen and B. Leiter, Oxford; Oxford University Press, 2007, p. 155-79.
5 See, for example, P. den Boer, History as a Profession: The Study of History in France, 1818-1914, trans. A. J. Pomerans, Princeton, Princeton University Press, 1998, p. 3-49; C. Crossley, French Historians and Romanticism: Thierry, Guizot, The Saint-Simonians, Quinet, Michelet, London, Routledge, 1993, p. 1-44; D. R. Kelley, Historians and the Law in Postrevolutionary France, Princeton, Princeton University Press, 1984, p. 3-40 and 72-92; L. Lévêque, Penser la nation: mémoire et imaginaire en revolutions, Paris, L’Harmattan, 2011, p. 9-277; F. L. van Holthoon, French Historians in the Nineteenth Century: Providence and History, Newcastle upon Tyne, Cambridge Scholars Publishing, 2019, p. 1-132; J. Walch, Les Maîtres de l’histoire, 1815-1850: Augustin Thierry, Mignet, Guizot, Thiers, Michelet, Edgar Quinet, Geneva, Éditions Slatkine, 1986, p. 7-47.
6 Kelley, p. 72-92; A. Dufour, Droits de l’homme, droit naturel et l’histoire: droit, individu et pouvoir de l’école de droit naturel à l’école du droit historique, Paris, Presses universitaires de France, 1991, p. 153-258; O. Jouanjan, Une Histoire de la pensée juridique en allemagne, 1800-1918: Idéalisme et conceptualisme chez les juristes allemands du xixe siècle, Paris, Presses universitaires de France, 2005, p. 11-184; M. Reimann, “Nineteenth-Century German Legal Science”, Boston College Law Review, 31, July 1990, p. 837-97; J. Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change, Princeton, Princeton University Press, 1990, p. 92-150.
7 Kelley, p. 85-138; F. Audren and J.-L. Halpérin, La culture juridique française: entre mythes et réalités, xixe -xxe siècles, Paris, CNRS, 2013, p. 95-110.
8 Kelley, p. 85-92; Audren and Halpérin, p. 37-38 and 98-100; A.-J. Arnaud, Les juristes face à la société du xixe siècle à nos jours, Paris, Presses universitaires de France, 1975, p. 64-70.
9 Rabban, p. 67-68; I. Durand, “Augustin Thierry et le Moyen Âge romantique: Le mythe des origines”, Augustin Thierry: L’histoire pour mémoire, Rennes, Presses universitaires de Rennes, 2018, p. 159-69.
10 Kelley, p. 13-22 and 62-71; Audren and Halpérin, p. 105-07.
11 Ibidem, p. 105.
12 See, for example, Arnaud, p. 68-70 (arguing that nineteenth-century French jurists – including those focused on criminal law – came to embrace history, rather than the exegetical interpretation of codes, as key to the project of developing an improved national law).
13 J. L. E. Ortolan, Éléments de droit penal: Pénalité, Juridictions, Procédure, Paris, Librairie de Plon frères, 1855, p. 19.
14 Ibid.
15 Ibid.
16 É. Garçon, Le droit pénal: origines, évolution, état actuel, Paris, Payot et compagnie, 1922, p. 117-18. By roughly 1840, Europeans jurists had also come to embrace a progress-oriented model of historical development in their accounts of criminal procedure. This model, which Ortolan played a key role in elaborating, was premised on a Hegelian, dialectical account of historical change – one that did not envision progress as an unbroken continuum but nonetheless presented the modern mixed form of accusatorial/inquisitorial procedure as the progressive end point of history. A. D. Kessler, “Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide”, American Journal of Comparative Law, 71, 2023 p. 305-19.
17 J. Berriat-Saint-Prix, “Des Procès intentés aux animaux”, Thémis ou Bibliothèque du jurisconsulte, 1, 1819 p. 194-97. On Berriat-Saint-Prix’s biography, see H. Laurain, Notice sur la vie et les œuvres de Jacques Berriat Saint-Prix, Paris, A. Durand & Pedone-Lauriel, 1889, p. 22 and 31.
18 Berriat-Saint-Prix, p. 196.
19 Ibid.
20 Ibid., p. 194.
21 V***** [Vernet], “Lettre adressée aux Éditeurs de la Thémis, sur les procès faits aux animaux”, Thémis ou Bibliothèque du jurisconsulte, 1, 1826 p. 34-46. The anonymous author of this report is identified as Vernet in Berriat-Saint-Prix, Rapport et recherches sur les procès et jugemens relatifs aux animaux, Paris, L’imprimerie de Selligue, 1829, p. 7-9, n.* 19; J. Berriat-Saint-Prix, “Lettre”, Thémis ou Bibliothèque du jurisconsulte, 1, 1826 p. 46-47.
22 Vernet, p. 42-43.
23 Berriat-Saint-Prix, “Lettre”, p. 46 (referring to Berriat-Saint-Prix, Rapport et recherches).
24 Berriat-Saint-Prix, Rapport et recherches, p. 27-47.
25 Ibid., p. 20.
26 L. Ménabréa, De l’origine, de la forme et de l’esprit des jugements rendus au Moyen-Âge contre les animaux, Chambéry, Puthod, 1846. For Ménabréa’s biography see, L. Ménabréa, Chroniques de Yolande de France, Duchesse de Savoie, Sœur de Louis XI, Chambéry, Puthod fils, 1859, p. V-X; A. Albrier, Les Naturalisés de Savoie en France, 1814-1848, Chambéry, Albert Bottero, 1878, p. 60.
27 Ménebréa, De l’origine, p. 6.
28 Ibid., p. 134-67.
29 Ibid., p. 4.
30 There were also occasional accounts of the history of animal prosecutions produced by non-jurist antiquarians and folklorists. See, for example, the following: J. Desnoyers, “Procès fait à des pourceaux”, Revue des sociétés savantes des départements, 8, 1879, p. 271-75; F. Ortoli, “Les Procès d’animaux au Moyen Âge”, La Tradition: Revue générale des contes, légendes, chants, usages, traditions et arts populaires, 3, 15 mars 1888, p. 77-82. See also R. Fox, The Savant and the State: Science and Cultural Politics in Nineteenth-Century France, Baltimore, Johns Hopkins University Press, 2012, p. 77 (describing Desnoyers as a “notable bibliophile and antiquarian”); H. Carnoy, Dictionnaire biographique international des écrivains, s.v., “Ortoli (Jean-Baptiste Frédéric)”, Hildesheim, Georg Olms Verlag, 1987, p. 51 (describing Ortoli’s career as a noted folklorist).
31 É. Agnel, Curiosités judiciaires et historiques du Moyen Âge: Procès contre les animau,x, Paris J. B. Dumoulin, 1858. For Agnel’s biography, see E. Glaeser, Biographie nationale des contemporains, s.v. “Agnel (Émile)”, Paris, Glaeser et compagnie, 1878, p. 4; A. Bitard, Dictionnaire de biographie contemporaine française et étrangère, s.v. “Agnel, Émile”, Paris, Léon Vanier, 1880, p. 13.
32 Agnel, p. 5.
33 A. Sorel, Procès contre des animaux et insectes suivis au Moyen Âge dans la Picardie et le Valois, Paris, August Aubry, 1877. For Sorel’s biography, see Baron de Bonnault, “Nécrologie: Le Président Sorel”, Bulletin monumental, publié sous les auspices de la Société française de l’archéologie pour la conservation des monuments historiques, Paris, A. Picard & fils, 1902, p. 428-34.
34 Sorel, p. 1.
35 Ibid.
36 Rabban, p. 4-5. For a broader discussion of the influence of the German Historical School on contemporary American thought, extending beyond juristic writings, see J. Herbst, The German Historical School in American Scholarship: A Study in the Transfer of Culture, Ithaca, Cornell University Press, 1965.
37 Ibid.
38 P. Beirnes, “The Law Is an Ass: Reading E. P. Evans’ The Medieval Prosecution and Capital Punishment of Animals”, Society and Animals, 2, 1994, p. 34 (noting that most, but not all commentators agree that animal prosecutions were rare in England). See also Edward Payson Evans’s detailed chronological list of animal prosecutions, which indicates that the vast majority took place in continental Europe. E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals, London, William Heinemann, 1906, p. 313-34.
39 “Prosecutions against Animals”, American Jurist and Law Magazine, 1, April 1829, p. 223-37; L. M. Friedman, A History of American Law, 4th ed., Oxford, Oxford University Press, 2019, p. 312-14; Virginia Law Books: Essays and Bibliographies, ed. W. Hamilton Bryson, Philadelphia, American Philosophical Society, 2000, p. 264.
40 Prefix to “Prosecutions against Animal”, p. 223.
41 “Trial by Jury”, Bench and Bar, New Series 1, July 1871, p. 123-34.
42 Ibid., p. 123-26.
43 M. E. E. Kerr, “Animals in Court”, Green Bag, 14, 1902, p. 264.
44 The literature on Lombroso and the rise of positivist criminology in both Italy and France is sizeable. See, for example, The Cesare Lombroso Handbook, eds. P. Knepper and P. J. Ystehede, London, Routledge, 2013; D. G. Horn, The Criminal Body: Lombroso and the Anatomy of Deviance, New York, Abingdon, 2003; M. Kaluszynski, La République à l’épreuve du crime: La construction du crime comme objet politique, 1880-1920, Paris, L.G.D.J., 2002; J.-C. Coffin, “Les hypothèses psychiatriques (1850-1900)”, Histoire de la criminologie française, ed. L. Mucchielli, Paris, L’Harmattan, 1994, p. 89-106; M. Renneville, “La reception de Lombroso en France (1880-1900)”, Histoire de la criminologie française, p. 107-35.
45 R. A. Nye, Crime, Madness, and Politics in Modern France: The Medical Concept of National Decline, Princeton, Princeton University Press, 1984, p. 99-106; M. Pifferi, “From Responsibility to Dangerousness: The Failed Promise of Penal Positivism”, The Limits of Criminological Positivism: The Movement for Criminal Law Reform in the West, 1870-1940, ed. M. Pifferi, London, Routledge, 2022, p. 255-79.
46 See, for example, Horn, p. 38-51; P.-O. Dittmar, “Le Propre de la bête et la salle de l’homme”, Adam et l’astragale: Essais d’anthropologie et d’histoire sur les limites de l’humain, Paris, Éditions de la Maison des sciences de l’homme, 2013, p. 153-72.
47 C. Lombroso, “Il delitto negli animali”, Archivio di psichiatria, scienze penali ed antropologia criminale, 2, 1881, p. 447.
48 Ibid.
49 Ibid., p. 444.
50 Ibid.
51 Ibid., p. 445-46.
52 Ibid., p. 445.
53 C. Lombroso, Criminal Man, trans. M. Gibson and N. Hahn Rafter, Durham (N.C.), Duke University Press, 2006, p. 171.
54 Ibid., p. 173-74.
55 Kaluszynski, p. 41-57; Nye, p. 103-27; Renneville, “La reception de Lombroso en France (1880-1900)”, M. Renneville, “La criminologie perdue d’Alexandre Lacassagne (1843-1924)”, Revue d’Histoire de la justice, des crimes et des peines, Criminocorpus, 2005, https://journals.openedition.org/criminocorpus/112; L. Mucchielli, “Hérédité et ‘milieu social’: Le faux antagonisme franco-italien”, Histoire de la criminologie française, p. 189-214.
56 A. Lacassagne, De la criminalité chez les animaux, Lyon, Imprimerie L. Bourgeon, 1882, p. 3. This piece initially appeared as an article in the Revue scientifique and was then reprinted as a stand-alone text. In 1893, Émile Laurent, who joined with Lacassagne in developing the French school of criminology, also turned to the history of animal prosecutions in developing an account of criminality among animals. In line with the growing divide between the French and Italian schools, Laurent’s account emphasizes the role of environment over and above that of heredity in producing (and treating) criminality. É. Laurent, L’Anthropologie criminelle et les nouvelles théories du crime, 2d ed., Paris, Société d’éditions scientifiques, 1893, p. 19-39; Nye, p. 114 n. 46, p. 224 (discussing Laurent’s role in the French school).
57 Ibid., p. 7-21.
58 Ibid., p. 3.
59 Ibid. Among the contemporary physicians who explored the history of animal prosecutions through the lens of emerging criminology, some resisted the conclusion that animals and humans were essentially alike. See, for example, L. Lossouarn, Les Animaux en justice au temps jadis, Bordeaux, Imprimerie Y. Cadoret, 1905, p. 41-55.
60 Lacassagne, De la criminalité, p. 3-4.
61 Ibid., p. 4.
62 Ibid., p. 3 and 6.
63 Ibid., p. 3.
64 Ibid., p. 21.
65 M. Pifferi, “Punishment and Social Control in Historical Perspective”, Oxford Research Encyclopedias, Politics, October 2022, p. 7, https://doi.org/10.1093/acrefore/9780190228637.013.1784.
66 W. Walton, “Frondeuses and Feminists in the Work of Arvède Barine (1840-1908)”, French Politics, Culture and Society, 38, Spring 2020, p. 91, 95-96 and 109, n. 23.
67 A. Barine, “Physionomie du criminel, d’après M. Lombroso”, Revue politique et littéraire, Revue bleue, August 13, 1887, p. 209.
68 Ibid., p. 209-10. On Barine’s support for eugenics, see Walton, p. 96 and 99-100.
69 As is well known, the United States has come to diverge from Europe in adopting a distinctively harsh approach to criminal punishment – though the question of precisely when and why this divergence occurred is a subject of extensive ongoing debate. While it is clear that the American embrace of penal harshness increased greatly from the 1970s onward, some argue that this development is an offshoot of longstanding political, cultural, and/or religious tendencies. See, for example, M. Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 10th anniversary ed., New York, New Press, 2020; J. Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe, New York, Oxford University Press, 2003; J. Kleinfeld, “Two Cultures of Punishment”, Stanford Law Review, 68, May 2016, p. 933-1036; J. Simon, “Positively Punitive: How the Inventor of Scientific Criminology Who Died at the Beginning of the Twentieth Century Continues to Haunt American Crime Control at the Beginning of the Twenty-First Century”, Texas Law Review, 84, June 2006, p. 2135-72. Although in no way dispositive, Evans’ frank embrace of harshness – in contrast to the more neutral, clinical language deployed by the likes of Lombroso, Lacassage, and Barine – is very much in line with the view of those who insist on the deeper roots of the American carceral state.
70 N. Humphrey, foreword to Evans, The Criminal Prosecution, p. XXVIII.
71 E. Payson Evans, “Bugs and Beasts Before the Law”, The Atlantic Monthly, August 1884, p. 235-46; E. Payson Evans, “Mediaeval and Modern Punishment”, The Atlantic Monthly, September 1884, p. 302-08.
72 Friedland, p. 9.
73 Evans, The Criminal Prosecution, p. 234-35.
74 Ibid.
75 Ibid., p. 236-37.
76 Ibid., p. 237.
77 Ibid., p. 203.
78 Ibid., p. 204.
79 Ibid.
80 Ibid., p. 203-05. On the view that Anglo-Saxon law was Germanic in nature and origins, see Rabban, p. 169-86.
81 Evans, The Criminal Prosecution, p. 210-11.
82 Ibid., p. 212.
83 Ibid., p. 222.
84 D. Donald, Women against Cruelty: Protection of Animals in Nineteenth-Century Britain, Manchester; Manchester University Press, 2020, p. 55-93; S. Shmuely, The Bureaucracy of Empathy: Law, Vivisection, and Animal Pain in Late Nineteenth-Century Britain Ithaca, Cornell University Press, 2023, p. 35-36.
85 J.-Y. Bory, La Douleur des bêtes: La polémique sur la vivisection au xixe siècle en France, Rennes, Presses universitaires de Rennes, 2013, p. 77-78; G. Bouchet, Le Cheval à Paris de 1850 à 1914, Geneva, Librairie Droz, 1993, p. 181-82; Fabien Carrié, “‘Vraies protectrices’ et représentantes privilégiées des sans-voix: L’engagement des femmes dans la cause animale française à la fin du xixe siècle”, Genre & Histoire, 22, Fall 2018, p. 1.
86 D. L. Beers, For the Prevention of Cruelty: The History and Legacy of Animal Rights Activism in the United States, Athens (OH), Swallow Press/Ohio University Press, 2006, p. 1-90; A. A. Robichaud, Animal City: The Domestication of America, Cambridge (MA), Harvard University Press, 2019, p. 128-96.
87 See generally Donald, Women against Cruelty, and Carrié, “‘Vraies protectrices.’” See also Beers, p. 8-12; Bory, p. 244-49.
88 H. Ritvo, The Animal Estate: The English and Other Creatures in the Victorian Age, Cambridge (MA), Harvard University Press, 1987, p. 125-202; É. Lusset, “Animaux, femmes et enfants, même combat? (xixe siècle)”, Dictionnaire du fouet et de la fessée: Corriger et punir, eds. I. Poutrin and É. Lusset, Paris, Presses universitaires de France, 2022, p. 27-30; S. J. Pearson, The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America, Chicago, University of Chicago Press, 2011, p. 5-8 (describing and critiquing the social control thesis).
89 Whether the new legal protections that animals were receiving followed from a recognition of their legal rights was a point of some contention among contemporaries. Compare, for example, the following: R. de la Grasserie, Des Principes sociologiques de la criminologie, Paris, V. Giard & E. Brière, 1901, p. 126 (arguing that animals have rights); H. S. Salt, Animals Rights’ Considered in Relation to Social Progress, New York, Macmillan, 1894, p. 1-23 (same); O. L. Quinlan, “Have Animals Rights?”, Central Law Journal, 38, 1894, p. 165-66 (denying that animals have rights); J. Tissot, “De l’essence du délit”, Revue critique de législation et de jurisprudence ,12, 1858, p. 520 (same).
90 Lacassagne, De la criminalité, p. 3.
91 H. Duméril, Les animaux et les lois, Paris, Ernest Thorin, 1880, p. 5-6
92 Ibid., p. 12.
93 Ibid., p. 19.
94 A. Barine, “Procès a des animaux”, Archives d’anthropologie criminelle, de criminologie et de psychologie normale et pathologique, 13, 1898, p. 352.
95 Ibid.
96 Ibid.
97 E. Payson Evans, Evolutional Ethics and Animal Psychology, New York, D. Appleton & Co., 1898, p. 13; Evans, The Criminal Prosecution, p. 212. See also Beirnes, p. 41-43 (highlighting the interconnections between Evans’ views on criminal punishment and animal rights).
98 Evans, Evolutional Ethics, p. 3.
99 Ibid. (quoting Frances Power Cobbe, The Ethics of Zoöphily).
100 Ibid., p. 12-13.
101 Ibid., p. 13.
102 Ibid., p. 14.
103 Evans, “Bugs and Beasts Before the Law”, Evans, “Mediaeval and Modern Punishment”, “A Dog Tried for Murder: In Earlier Days Such Cases Were Not Uncommon”, Munsey’s Magazine, 72, February to May 1921, p. 333-34; “Procès aux animaux”, L’intermédiaire des chercheurs et curieux, May 20, 1905, p. 771; “Les animaux criminels”, Le progrès civique, journal de perfectionnement social, January 1, 1927, p. 1560.
104 On payment of a fine, the chimpanzee was eventually released. “Des singes qui vont dans le monde”, Lectures pour tous, Revue universelle et populaire illustrée, 1, October 1908, p. 544; “And the Chancellor Said ‘I Doubt’”, The Bar (West Virginia), 22, December 1915, p. 31; A. Cabanès, Les indiscretions de l’histoire, 5th series, Paris, Albin Michel, 1924, p. 64, n. 2 and 65, n. 1; A. Train, On the Trail of Bad Men, New York, Charles Scribner’s Sons, 1925, p. 125-26; J. P. McNamara, “Animal Prisoner at Bar”, Notre Dame Law, 3, 1927, p. 31.
105 See, for example, Train, On the Trail, p. 126 (discussing a foxhound in Kentucky charged with murdering a sheep); “A Dog Tried for Murder: In Earlier Days Such Cases Were Not Uncommon”, p. 333 (same); Cabanès, p. 63-64 (discussing the case of a greyhound charged with violating an anti-hunting regulation and that of another dog charged with committing theft); J. Boggero, De l’Évolution du role social de la peine et de ses consequences législatives, Marseille, Imprimerie Méridionale, 1905, p. 29-30 (discussing the case of the greyhound).
106 The following are some examples of the transatlantic coverage: “The Dog’s ‘Arrest’”, Evening Standard (London), October 10, 1919, p. 1-2; “K.C. Briefed for Dog”, The Daily Mirror (London), October 10, 1919, p. 2 and 9; “Death Sentence Quashed: ‘Bobs’ Appeal Succeeds”, The Daily Mirror, October 11, 1919, p. 1-2; “Bob ne sera pas exécuté, Il est acquitté en appel”, Le Petit Parisien, October 12, 1919, p. 1-2; “‘Bobs’ His Name, Great His Fame”, The Gazette (Montreal, Canada), October 13, 1919, p. 2; “Un perro ante los tribuales ingleses”, El Sol (Madrid), October 16, 1919, p. 6; “Dog Reprieved”, The Fulham Chronicle (London), October 17, 1919, p. 6; “‘Bobs Saved”, Western Gazette (Somerset, England), October 17, 1919, p. 10; “Dogs to Get Day in Court”, New York Times, August 23, 1925, p. 25.
107 See the newspaper articles listed above in n. 106.
108 A. W. Bates, Anti-Vivisection and the Profession of Medicine in Britain: A Social History, London, Palgrave Macmillan, 2017, p. 146-55 (discussing the founding and operation of the league); R. Wild, King’s Counsel: The Life of Sir Henry Curtis-Bennett, New York, Macmillan, 1938.
109 “Death Sentence Quashed: ‘Bobs’ Appeal Succeeds”.
110 “Bob ne sera pas exécuté, Il est acquitté en appel”.
111 “Dogs to Get Day in Court”.
112 “Bob ne sera pas exécuté, Il est acquitté en appel”. El Sol, in turn, referred to “British Humor”: “Un perro ante los tribuales ingleses”.
113 McNamara, p. 32.
114 A. Train, “The Dog Andrew”, Tutt and Mr. Tutt, New York, Charles Scribner’s Sons, 1922, p. 143-85. On the story’s initial publication, see F. M. Nevins, “Mr. Tutt’s Jurisprudential Journey: The Stories of Arthur Train”, Legal Studies Forum, 19, 1995, p. 70 and 88, n.*. Train indicated that an earlier Tutt story was inspired by his reading of an article that appeared in a St. Louis newspaper. A. Train, My Day in Court, New York, Charles Scribner’s Sons, 1939, p. 482-83; D. Ray Papke, “Lawyer Fiction in the Saturday Evening Post: Ephraim Tutt, Perry Mason, and Middle-Class Expectations”, Cardozo Studies in Law and Literature, 13, Fall 2001, p. 211.
115 Naturalist authors like Émile Zola and Frank Norris were profoundly shaped by social Darwinism, depicting characters whose fates were determined by forces beyond their control, including not least their own atavistic animality. Schwarz, p. 253-72; M. Dawson, “The Loud Echo of a ‘Far Distant Past’: Darwin, Norris, and the Clarity of Anger”, America’s Darwin: Darwinian Theory and U.S. Literary Culture, eds. T. Gianquitto and L. Fisher, Athens (GA), University of Georgia Press, 2014, p. 207-34. Likewise, key figures of Modernist literature, including D. H. Lawrence and Virginia Woolf, focused significant attention on animals and their subjectivity. Anna Sewell’s Black Beauty is perhaps the most famous of the sentimental narratives that appeared in this period. L. Carswell, “‘The Power of Choice’: Darwinian Concepts of Animal Mind in Jack London’s Dog Stories”, America’s Darwin, p. 306.
116 Beers, p. 105-08.
117 Carswell, p. 302-32.
118 Train and London were in fact acquainted, as they worked together as members of the council responsible for overseeing the Authors’ League of America – an organization founded by Train in 1912 to promote authorial interests, especially in copyright. Year Book of the Authors’ League of America, Inc., Year Ending April First, 1914, New York; R. Fine, James M. Cain and the American Authors’ Authority, Austin, University of Texas Press, 1992, p. 62.
119 Nevins, p. 57-63.
120 Papke, p. 211.
121 Train, “The Dog Andrew”, p. 150.
122 Ibid., p. 157.
123 Ibid., p. 156.
124 Ibid., p. 144.
125 Ibid., p. 144-45.
126 Ibid., p. 152.
127 Ibid., p. 157.
128 Ibid., p. 159.
129 Ibid.
130 Ibid. See, for example, Beers, p. 47-49 (noting that the American Society for the Prevention of Cruelty to Animals focused first and foremost on preventing cruelty against horses).
131 Train, “The Dog Andrew”, p. 159. Train himself would further pursue these linkages between the history of animal prosecutions and modern theories of animal rights in a later essay, entitled “Animals in Court”, in which he argues that “[i]t is not inconceivable that in some future age the doctrine may obtain that animals have the same right to life, liberty, and the pursuit of happiness as ourselves”. A. Train, “Animals in Court”, On the Trail, p. 145.
132 A. Storra-Lamarre, La République des faibles, Paris, Armand Colin, 2005, p. 179-86; M. Pifferi, “Individualization of Punishment and the Rule of Law: Reshaping Legality in the United States and Europe between the 19th and the 20th Century”, American Journal of Legal History, 52, July 2012, p. 325-76.
133 Train, “The Dog Andrew”, p. 160-61.
134 Ibid., p. 161.
135 Ibid.
136 Ibid., p. 165.
137 Ibid., p. 182.
138 Ibid.
139 Ibid., p. 185.
140 Ibid., p. 160.
141 See, for example, P. Beirne, Law, Criminology, and Human-Animal Relationships, Lanham, D: Rowman & Littlefield, 2009, p. 1 (pointing to “a coincidence in the domain concerns of three movements, namely, animal rights, human-animal studies, and green criminology”); L. Gruen and J. Marceau, Introduction to Carceral Logics: Human Incarceration and Animal Captivity, Cambridge, Cambridge University Press, 2022, p. 1-2 (joining together “two seemingly separate concerns – the harmfulness of our system of mass incarceration and the harm that humans do to nonhumans”); L. Bègue, “Pour une criminologie animalière”, Revue semestrielle de droit animalier, 2, 2018, p. 211-18 (arguing for the development of an “animal criminology”).
142 See the works cited in note 1 above.
143 D. A. Sklansky, A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice, Cambridge (MA), The Belknap Press of Harvard University Press, p. 155-61; B. Caldwell and E. C. Caldwell, “‘Superpredators’ and ‘Animals’ – Images and California’s ‘Get Tough on Crime’ Initiatives”, Journal of the Institute of Justice and International Studies, 2011, p. 61-72.
144 Chevènement himself insisted that he used the term in its horticultural sense, meaning wild stock. J. Culbert, Paralyses: Literature, Travel, and Ethnography in French Modernity, Lincoln, University of Nebraska, 2010, p. 404, n. 81; P.-F. Paoli, L’Imposture du vivre ensemble de A à Z: Quelques points de repères, s.v. “Sauvageon”, Paris, L’Artilleur, 2018, p. 299-300.
145 Paoli, p. 300.
146 N. A. Farahany and J. E. Coleman Jr., “Genetics and Responsibility: To Know the Criminal from the Crime”, Law and Contemporary Problems, 69, Winter/Spring 2006, p. 163-64; N. A. Farahany, “Neuroscience and Behavioral Genetics in U.S. Criminal Law: An Empirical Analysis”, Journal of Law & the Biosciences, 2, November 2015, p. 485-509; G. Mathieu, “La généticisation de l’agression: Enjeux ontologiques, éthiques et juridiques”, Revue médicine et philosophie, 2020, p. 83-90, https://hal.science/hal-02490185.
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Titre | Front page of the British Daily Mirror, October 11 |
Crédits | Daily Mirror, on microfilm (London, British Library Reference Division), held by Green Media Library, Stanford University |
URL | http://journals.openedition.org/cliothemis/docannexe/image/5776/img-1.png |
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Amalia D. Kessler, « French and American Histories of Animal Prosecutions: Criminal Punishment and Animal Rights through the Prism of the Past », Clio@Themis [En ligne], 28 | 2025, mis en ligne le 01 mai 2025, consulté le 23 juin 2025. URL : http://journals.openedition.org/cliothemis/5776 ; DOI : https://doi.org/10.4000/13wwc
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