Whenever I’ve heard the question, what separates humans from the rest of the animal kingdom, responses inevitably
cluster around some specific form of cognitive capacity: tool-making and using, abstract thought, that ability to transcend temporality, emotional experience, language, moral culpability, the ability to transcend instinct, and so on. Recent research has dispelled many of these as uniquely human experiences, not to mention the fact that evolutionary science has dispensed with any formal separation of us hairless apes from the rest of the fauna.
Still, having grown up in the 1970s and 1980s in both mainline Protestant and evangelical communities in the South, I carried inside me for a long time vestiges of a particular form of human exceptionalism, even after I had abandoned my own religious faith. The irony is that the construction of a real wall of separation between human animals and the rest of the wild kingdom is, in some ways, itself the product of the challenges to faith of scientific modernity. Or at least, that is suggested by sex crime trials in late colonial Spanish America.
What? How did we get from that A to that B? Well, I’m always struck by moments in early modern history that demonstrate a different mode of thinking about the relationship between animals and human animals. I also happen to study historical manifestations of human sexuality. There’s always fun to be had when the two meet, which they did on occasion in the late colonial period.
Of course, they met in criminal prosecutions of bestiality. During the course of my dissertation research, I came across a wonderful 18th century handwritten legal manual transcribed and published by Charles Cutter. The 1764 Libro de los principales Rudimentos tocante a todos Juicios, Criminal, Civil, y Executivo provided specific instructions for alcaldes and escribanos engaged in all manner of judicial procedure. Criminal investigations were handled by the same magistrates who sat in judgement, a system still in use in Spain, though one that feels foreign in the United States where the police and the state’s attorney have the investigative power but not judges. But, back to our animals. The Libro defines the bestial act as cohabitation with animals, requiring a denunciation from witnesses who caught the offenders in the act. Because of the gravity of the crime, the alleged offenders, both the person and the animal, were to be imprisoned, and held in separate cells. The human involved was questioned if he understood the nature of the crime he was being charged with, and given the chance to confess or have a face-to-face confrontation with the complainant and any other witnesses. Also, if needed the court would seek to certify the specifics of the moment– Where the defendant’s pants off? Was his “member” moist? Was the animal’s? (I’m not kidding, sometimes the manuals can be incredibly specific.) There is an overwhelming interest in establishing a combination of witness testimony and physical evidence to prove the crime, and with good reason– punishment for bestiality could be very severe, including for the animal.
Which brings me back to my point– the first time I read this section of the Libro, I was not surprised by the graphic nature of the investigative instructions. Bodily examinations were a hallmark of most types of early modern criminality. I was, however, taken aback by the instruction to jail the animal. Why order the arrest and detention, with the added note that the animal and the individual be held in separate cells, in cases where it’s only logical that the animal was victimized? Spanish rape trials (both statutory and violent) did not include the detention of the victimized woman. The only explanation can be that they believed the animal to be potentially culpable for the crime, complicit in its own defilement. What does this say about the relationship between, or separation of humans and animals? Is the animal in question capable of desire? Capable of temptation, or of tempting another? Is it guilty of intentionality? Spanish law provided for a range of mitigating factors, some of which could lead to absolution. Drunkenness shows up frequently in murder, assault, and sex crime cases in part because it was codified as a serious mitigating factor. Spanish law recognized that intoxication diminished one’s capacity for accountable behavior. In the instructions for investigating bestiality, magistrates were admonished that if the defendant was an Indian or was mentally questionable (asimplado), it should first be determined that the he understood the fact that bestial acts were immoral and illegal. (Spanish law maintained that indigenous subjects were too young in the Christian faith and exposure to law to be held to the same standard of accountability as Spaniards. This was, in part, at the root of excluding Indians from the jurisdiction of the Holy Office of the Inquisition.)
For some reason, there was a small cluster (4) of of bestiality cases in the Audiencia of Quito in the late, late colonial period. All but one of them originated outside the corregimiento itself, so I only have access to the appeals that were sent to the Audiencia. Yesterday, I was transcribing one such case against a poor kid named Geronimo Berveran, who was just 15 years old when he was tried and convicted of bestiality with a mare. Geronimo lived with his mother, Pasquala Rivas in small hamlet of Giron outside of Cuenca. On the day of the Fiesta de Jueves de Compadres, the thursday before Carnaval in 1804, a mulato named Juan Campoverde denounced Geromino to the local alcalde for allegedly having sex with a mare that belonged to another local man, Gerardo Quesada. What followed for Geronimo was two years of captivity while the case was slowly investigated and adjudicated. When the definitive sentence was handed down in 1806, Geronimo was condemned to ten years service in the presidio at the mouth of the Chagres River in Panama. The mare was less fortunate, and was sentenced to death by lance. Geronimo’s family also had to reimburse the horse’s owner for her value. Thus, after two years in the local jail in Cuenca, Geronimo now faced ten years more far from his family in servitude as well as condemned to pay for the mare that was allegedly the source of his humiliation along with all the costs of court. It a devastating ruling, all the more for the poor horse.
Luckily, Geronimo’s mother Pasquala mounted a vigorous appeal to the Audiencia, secured free representation for her son by the crown’s Procurador de Pobres, successfully impeached Campoverde’s testimony, and secured her son’s freedom. In the end, Campoverde and the local justice of the peace from Giron were ordered to cover the 89 pesos 2 1/2 reales of court costs, though the condemnation rings a bit hollow compared with suffering for two years in the conditions of an early nineteenth century jail. And the mare was apparently returned to her own. But again, what exactly was the horse condemned for? And, more importantly, what does that condemnation say about the notion of moral culpability and the capacity for intentional action that animals had in the early modern mind? In fact, in an era when humans still perceived of themselves as specially created by God, separate from the rest of creation, the natural world had the capacity to express will and intention, from individual animals to the weather, mountains, streams, and the like, that was increasingly denied in the dichotomous modernity of Darwin and his deniers.
(PS- something tells me this post might put Akismet to work.)