Tillikum the slave whale deserves his day in court

Practice Section created its Animal Law Committee. More than 100 animal law courses are being taught at law schools across the States.

The legal system, Alfisi reckons, is beginning “to reflect the increasingly complex relationship between people and their pets in our society”.

The phrase “increasingly complex” does the Middle Ages a grave injustice. Just read my CounterPunch co-editor Jeffrey St Clair’s marvelous introduction to Jason Hribal’s Fear of the Animal Planet: The Hidden Story of Animal Resistance.

As St Clair writes, “In medieval Europe (and even colonial America) thousands of animals were summoned to court and put on trial for a variety of offences, ranging from trespassing, thievery and vandalism to rape, assault and murder. The defendants included cats, dogs, cows, sheep, goats, slugs, swallows, oxen, horses, mules, donkeys, pigs, wolves, bears, bees, weevils, and termites.

“These tribunals were not show trials or strange festivals like Fools Day. The tribunals were taken seriously by both the courts and the community.”

Humans and animals often ended up in the same courtroom as co-conspirators, especially in cases of bestiality. The animals were given their own lawyers at public expense. “Sometimes, particularly in cases involving pigs,” St Clair writes, “the animal defendants were dressed in human clothes during court proceedings and at executions.”

In the French region of Savoy, in 1575, the weevils of Saint Julien, a tiny hamlet in the Rhone Alps, were indicted for the crime of destroying the famous vineyards on the flanks of Mount Cenis. A lawyer, Pierre Rembaud, was appointed as defence counsel for the accused.

Rembaud wasted no time in filing a motion for summary judgment, arguing that the weevils had every right to consume the grape leaves. Indeed, Rembaud asserted, the weevils enjoyed a prior claim to the vegetation on Mount Cenis, since, as detailed in the Book of Genesis, the Supreme Deity had created animals before he fashioned humans and God had promised animals all of the grasses, leaves and green herbs for their sustenance. Rembaud’s argument stumped the court.

As the judges deliberated, the villagers of Saint Julien seemed swayed by the lawyer’s legal reasoning. Perhaps the bugs had legitimate grievances. The townsfolk scrambled to set aside a patch of open land away from the vineyards as a foraging ground for the weevils. The land was surveyed. Deeds were drawn up and the property was shown to counselor Rembaud for his inspection and approval. They called the weevil reserve La Grand Feisse.

Rembaud walked the site, investigating the plant communities with the eyes of a seasoned botanist. Finally, he shook his head. No deal. The land was rocky and had obviously been over-grazed for decades. La Grand Feisse was wholly unsuitable for the discriminating palates of his clients.

The Perry Mason of animal defence lawyers was an acclaimed French jurist named Bartholomew Chassene, who later became a chief justice in the French provincial courts and a pre-eminent legal theorist. He argued that local animals, both wild and domesticated, should be considered lay members of the parish community. In other words, the rights of animals were similar in kind to the rights of the people at large.

In 1642 a teenage boy named Thomas Graunger stood accused of committing, in the unforgettable phrase of Cotton Mather, "infandous buggeries" with farm animals in Plymouth, Massachusetts. Young master Graunger was hauled before an austere tribunal of Puritans headed by Gov. William Bradford. There he stood trial beside his co-defendants, a mare, a cow, two goats, four sheep, two calves and a turkey. All were found guilty. They were publicly tortured and executed. Their bodies were burned on a pyre, their ashes buried in a mass grave. Graunger was the first juvenile to be executed in colonial America.

In 1750, a French farmer named Jacques Ferron was espied sodomising a female donkey in a field. Ferron was convicted and sentenced to be burned at the stake. But the donkey’s lawyers argued that their client was innocent. The donkey, the defence pleaded, was a victim of rape and not a willing participant in carnal congress with Ferron. Character witnesses were called to testify on the donkey’s behalf. The donkey was acquitted and duly released back to its pasture.

The people of the Middle Ages, dismissed as primitives in many modernist quarters, were actually open to a truly radical idea: animal consciousness.

The animal trials peaked in the late-16th and early-17th centuries, then faded away, done in by the Enlightenment and by Rene Descartes who argued that animals were mere physical automatons. They lacked the power of cognition, the ability to think and reason. At Port-Royal the Cartesians cut up living creatures with fervour, and in the words of one of Descartes’ biographers, "kicked about their dogs and dissected their cats without mercy, laughing at any compassion for them and calling their screams the noise of breaking machinery".

Across the Channel Francis Bacon declared in his Novum Organum that the proper aim of science was to restore the divinely ordained dominance of man over nature, "to extend more widely the limits of the power and greatness of man” and so to endow him with "infinite commodities". Bacon’s doctor, William Harvey, was a diligent vivisector of living animals.

Thus at the dawn of capitalism, the materialistic view of history left no room for either the souls or consciousness of animals. They were no longer our fellow beings. They had been rendered, philosophically and literally, resources for guiltless exploitation, turned into objects of commerce, labour, food – and entertainment. Tillikum should get his day in court.

• Jason Hribal’s Fear of the Animal Planet: The Hidden Story of Animal Resistance is published by CounterPunch Books.

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