# The Matter of Nonhuman Rights Project v. James J. Breheny

> New York Court of Appeals · June 14, 2022

URL: https://www.frixlaw.com/law-library/cases/6349491

## Case

- **Court:** New York Court of Appeals
- **Decided:** June 14, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.

No. 52
In the Matter of Nonhuman Rights
Project, Inc., &c.,
Appellant,
v.
James J. Breheny, &c., et al.,
Respondents.

Monica L. Miller, for appellant.
Kenneth A. Manning, for respondents.
Martha C. Nussbaum; Protect the Harvest et al.; John Berkman et al.; Christine M.
Korsgaard; Gary L. Comstock et al.; Jane H. Fisher-Byrialsen et al.; American Veterinary
Medical Association et al.; National Association for Biomedical Research; Edwin
Cameron; Mahinda Deegalle et al.; Joe Wills et al.; Laurence H. Tribe et al.; New York
Farm Bureau et al.; Association of Zoos & Aquariums et al.; Randall S. Abate et al.;
Carol Bakhos et al.; Christina Nellist et al.; Peter Singer et al.; Shannon Minter et al.;
Richard L. Cupp, Jr.; Maneesha Deckha; K.S. Panicker Radhakrishnan; Andrew Linzey
et al.; Animal Legal Defense Fund, amici curiae.

DiFIORE, Chief Judge:

For centuries, the common law writ of habeas corpus has safeguarded the liberty

rights of human beings by providing a means to secure release from illegal custody. The

question before us on this appeal is whether petitioner Nonhuman Rights Project may seek

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habeas corpus relief on behalf of Happy, an elephant residing at the Bronx Zoo, in order to

secure her transfer to an elephant sanctuary. Because the writ of habeas corpus is intended

to protect the liberty right of human beings to be free of unlawful confinement, it has no

applicability to Happy, a nonhuman animal who is not a “person” subjected to illegal

detention. Thus, while no one disputes that elephants are intelligent beings deserving of

proper care and compassion, the courts below properly granted the motion to dismiss the

petition for a writ of habeas corpus, and we therefore affirm.

I.

Petitioner Nonhuman Rights Project is a not-for-profit corporation that

characterizes its mission as seeking to establish that “at least some nonhuman animals” are

“legal persons” entitled to fundamental rights, including “bodily integrity and bodily

liberty.” In furtherance of this mission, petitioner has commenced myriad proceedings in

New York and other states on behalf of chimpanzees and elephants, arguing that these

nonhuman animals are legal “persons” being unlawfully confined and, as such, they are

entitled to the remedy of habeas corpus. Petitioner’s efforts have been unsuccessful, with

no court granting such petitions and most of these courts dismissing the proceedings on the

basis that nonhuman animals are not legal “persons” with liberty rights protected by the

writ of habeas corpus (see Matter of Nonhuman Rights Project, Inc. v Lavery, 152 AD3d

73, 77 [1st Dept 2017], lv denied 31 NY3d 1054 [2018]; People ex rel. Nonhuman Rights

Project, Inc. v Lavery, 124 AD3d 148, 150 [3d Dept 2014], lv denied 26 NY3d 902 [2015];

Rowley v City of New Bedford, 99 Mass App Ct 1104, 159 NE3d 1085 [Mass App Ct 2020],

review denied 486 Mass 1115, 165 NE3d 159 [2021]; Nonhuman Rights Project, Inc. v

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R.W. Commerford and Sons, Inc., 192 Conn App 36, 47-48, 216 A3d 839, 845-846 [Conn

App 2019], cert denied 330 Conn 920 [2019]; see also Matter of Nonhuman Rights Project,

Inc. v Presti, 124 AD3d 1334, 1335 [4th Dept 2015], lv denied 26 NY3d 901 [2015]; Matter

of Nonhuman Rights Project Inc. v Stanley, 2014 NY Slip Op 68434[U] [2d Dept 2014]).

Undeterred, in 2018, petitioner commenced this habeas proceeding in Supreme

Court against respondents James J. Breheny, Director of the Bronx Zoo, and the Wildlife

Conservation Society, the organization that operates the Zoo and promotes conservation

efforts to preserve wildlife worldwide. Petitioner sought a writ of habeas corpus “on behalf

of Happy,” an Asian elephant that petitioner claimed was unlawfully confined at the Zoo

in violation of her right to bodily liberty. Happy, who has been in captivity since she was

approximately one year old, has resided at the Bronx Zoo for the last 45 years.

Unfortunately, Happy’s original elephant companion was euthanized in 2002 due to

injuries sustained in an altercation with other resident elephants. Happy was then paired

with another companion for several years until that elephant was euthanized after falling

ill. The Zoo then announced that it would not be acquiring more elephants and would

eventually end its captive elephant program. Thus, Happy and another female elephant,

Patty, are the only remaining elephants at the Zoo today and they are housed separately

due to their hostile relationship.

In seeking habeas relief, petitioner did not dispute that Happy’s residence at the

Zoo—which is accredited by the Association of Zoos and Aquariums and regulated by the

federal Animal Welfare Act (see generally 7 USC § 2131)—complies with all applicable

federal and state statutes and regulations governing elephant care. Further, although

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petitioner contended that Happy does not have sufficient direct social contact with other

elephants as a consequence of her current living situation, petitioner did not otherwise

allege that Happy is subjected to cruel, neglectful, or abusive treatment. Nevertheless,

noting that Happy is an “extraordinarily cognitively complex and autonomous nonhuman”

animal, petitioner argued that she should be “recognized as a legal person with the right to

bodily liberty protected by the common law” and immediately released from “unlawful

imprisonment” at the Zoo. Petitioner acknowledged, however, that Happy could not safely

be released to wander the city streets or even to the wild, requesting instead that she be

transferred to an “appropriate sanctuary,” preferably one chosen by petitioner, where she

could potentially be integrated with other elephants.

To support its request, petitioner proffered affidavits from several experts

specializing in elephant study and care attesting to the general characteristics of elephants.

These experts asserted that elephants are “autonomous beings” inasmuch as they “direct[]

their behavior based on some non-observable, internal cognitive process, rather than simply

responding reflexively.” Further, they explained—and it is essentially undisputed—that

elephants are intelligent beings, who have the capacity for self-awareness, long-term

memory, intentional communication, learning and problem-solving skills, empathy, and

significant emotional response. These experts did not, however, comment on Happy’s

particular circumstances, the adequacy of her environment, or the care she receives at the

Zoo.

The Zoo respondents opposed petitioner’s application and, as relevant here,

requested dismissal of the petition for lack of standing and failure to state a cause of action.

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Respondents argued that there was no legal basis for habeas relief and that Happy’s living

conditions comply with all relevant laws and accepted standards of care. The Bronx Zoo’s

Chief Veterinarian proffered an affidavit detailing the Zoo’s efforts to “ensure Happy’s

continued physical and psychological well-being and health” and averring that Happy is

“currently healthy and well-adapted to her present surroundings.” He opined that removing

Happy from her long-term home would cause her “substantial stress” and “create a serious

risk to her long-term health.” The Associate Director of the Bronx Zoo also submitted an

affidavit describing the Zoo’s compliance with elephant management and care standards

and accreditation requirements, Happy’s routine medical care, her physical

accommodations, and her comfort and familiarity with her caregivers. Finally, respondent

Breheny—Director of the Bronx Zoo—explained that Happy was housed in a separate

enclosure adjoining Patty’s because Happy “has a history of not interacting well with other

elephants,” but she is nevertheless able to interact with Patty through “sound, olfaction,

and touch.” Breheny pointed out—and the elephant sanctuary in question conceded—that

unrelated elephants living together in captivity may have acrimonious relationships and,

thus, a transfer could not guarantee Happy increased interaction with other elephants.

Petitioner contested this point in reply, asserting that elephants such as Happy may be able

to form positive social relationships in a sanctuary environment.

Supreme Court dismissed the petition on the ground “that animals are not ‘persons’

entitled to rights and protections afforded by the writ of habeas corpus” and, in any event,

habeas relief is not available where, as here, petitioner merely sought to obtain Happy’s

transfer from one lawful confinement to another rather than her immediate release from

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detention. On petitioner’s appeal, the Appellate Division unanimously affirmed, reasoning

that “the writ of habeas corpus is limited to human beings” (189 AD3d 583, 583 [1st Dept

2020]). The Appellate Division also cautioned that a judicial determination that nonhuman

animals are legal “persons” would “lead to a labyrinth of questions that common-law

processes are ill-equipped to answer,” noting that “the decisions of whether and how to

integrate other species into legal constructs designed for humans is a matter better suited

to the legislative process” (id. [citation omitted]). This Court granted petitioner leave to

appeal (36 NY3d 912 [2021]).

II.

Petitioner urges the Court to recognize Happy as a legal “person” with a common

law right to bodily liberty subject to the protections of the writ of habeas corpus. According

to petitioner, modern ethics, policy, notions of justice, and social norms compel the

conclusion that Happy has the right to be free from confinement in the Zoo because she is

an autonomous and extraordinarily cognitively complex being capable of possessing legal

rights even if she is incapable of assuming legal duties. While no one disputes the

impressive capabilities of elephants, we reject petitioner’s arguments that it is entitled to

seek the remedy of habeas corpus on Happy’s behalf. Habeas corpus is a procedural

vehicle intended to secure the liberty rights of human beings who are unlawfully restrained,

not nonhuman animals.

The ancient writ of habeas corpus “is a summary proceeding to secure personal

liberty” that “strikes at unlawful imprisonment or restraint of the person by state or citizen”

(People ex rel. Duryee v Duryee, 188 NY 440, 445 [1907]; see People ex rel. Sabatino v

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Jennings, 246 NY 258, 260 [1927]). The right of persons to invoke the writ of habeas

corpus—“the historic writ of liberty” which we have recognized as “the greatest of all

writs”—is “primary and fundamental” (People v Schildhaus, 8 NY2d 33, 36 [1960]

[internal quotation marks omitted]; see US Const, art I, § 9; NY Const, art I, § 4; People

ex rel. DeLia v Munsey, 26 NY3d 124, 130 [2015]). The centuries-old writ originated in

English law and has been a steadfast pillar of our common law (see Preiser v Rodriguez,

411 US 475, 484-485 [1973]; People ex rel. Tweed v Liscomb, 60 NY 559, 565-566

[1875]). It is also enshrined in the New York Constitution, which safeguards “[t]he right

of persons, deprived of liberty, to challenge in the courts the legality of their detention”

(Hoff v State of New York, 279 NY 490, 492 [1939] [emphasis added]). Article I, § 6

declares that “[n]o person shall be deprived of life, liberty or property without due process

of law” and Article I, § 4 dictates that the privilege of the writ of habeas “shall not be

suspended, unless, in case of rebellion or invasion, the public safety requires it.” Thus,

although procedural aspects of the writ are governed by statute (see CPLR art 70), the “writ

cannot be abrogated, or its efficiency curtailed, by legislative action” (Tweed, 60 NY at

566).

“Our constitutional guaranties of liberty are merely empty words unless a person

imprisoned or detained against [their] will may challenge the legality of [their]

imprisonment and detention” (Hoff, 279 NY at 492). The common law writ of habeas

corpus therefore provides a means of redress for persons alleging detention or

imprisonment in violation of various statutory or constitutional rights and, on the merits,

the question presented in a habeas proceeding is whether the relator’s confinement is

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contrary to law (see DeLia, 26 NY3d at 130-131; People ex rel. Thorpe v Von Holden, 63

NY2d 546, 550 [1984]; People ex rel. Spinks v Harris, 53 NY2d 784, 785 [1981]; People

ex rel. Klein v Krueger, 25 NY2d 497, 499 [1969]; People ex rel. Zakrzewski v Mancusi,

22 NY2d 400, 404-405 [1968]; People ex rel. Granskofski v Whitehead, 8 NY2d 962, 963

[1960]; Sabatino, 246 NY at 260; Lemmon v People, 20 NY 562, 615 [1860]). Persons

seeking a writ of habeas corpus must establish more than just confinement to justify its

issuance; they must show that their confinement is illegal (see People ex rel. Robertson v

New York State Div. of Parole, 67 NY2d 197, 201 [1986]; see also CPLR 7003 [a]).

Habeas corpus is not, however, the primary remedy for statutory or constitutional

violations that result in unlawful restraint. Resort to habeas and “[d]eparture from

traditional orderly proceedings”—such as the appellate process—is “permitted only when

dictated . . . by reason of practicality and necessity” (People ex rel. Keitt v McMann, 18

NY2d 257, 262 [1966]). Furthermore, under New York law, “habeas corpus generally will

lie only where the [relator] would become entitled to . . . immediate release upon the writ

being sustained” (People ex rel. Chakwin v Warden, N.Y. City Correctional Facility, Rikers

Is., 63 NY2d 120, 125 [1984]; see DeLia, 26 NY3d at 131; People ex rel. Hall v LeFevre,

60 NY2d 579, 580 [1983]; People ex rel. Mendolia v Superintendent., Green Haven

Correctional Facility, 47 NY2d 779, 779 [1979]).

Petitioner urges this Court to recognize its right on behalf of Happy, an elephant, to

invoke the protections of the writ to challenge her confinement at the Bronx Zoo. However,

despite the awesome power of the writ of habeas corpus and its enduring use throughout

the centuries, no court of this State—or any other—has ever held the writ applicable to a

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nonhuman animal. Nothing in our precedent or, in fact, that of any other state or federal

court, provides support for the notion that the writ of habeas corpus is or should be

applicable to nonhuman animals. The selective capacity for autonomy, intelligence, and

emotion of a particular nonhuman animal species is not a determinative factor in whether

the writ is available as such factors are not what makes a person detained qualified to seek

the writ. Rather, the great writ protects the right to liberty of humans because they are

humans with certain fundamental liberty rights recognized by law (see generally Preiser,

411 US at 485; Tweed, 60 NY at 569; Sisquoc Ranch Co. v Roth, 153 F2d 437, 440-441

[9th Cir 1946]). Nonhuman animals are not, and never have been, considered “persons”

with a right to “liberty” under New York law (see ECL 11-0105 [“The State of New York

owns all fish, game, wildlife, shellfish, crustacea and protected insects in the state, except

those legally acquired and held in private ownership”]; Mullaly v People, 86 NY 365, 366-

368 [1881]; Pierson v Post, 3 Caines 175, 178-179 [1805]; see Agriculture and Markets

Law §§ 108, 107).

To be sure, as our dissenting colleagues observe, the writ of habeas corpus is flexible

and has long existed as a mechanism to secure recognition of the liberty interests of human

beings—even those whose rights had not yet been properly acknowledged through

established law. That flexibility, however, is not limitless and the extension of the writ

would far exceed its bounds here, where petitioner seeks its application to a nonhuman

animal. In that regard, the dissents are long on historical discourse but woefully short of

any cogent legal analysis identifying any recognizable source of a proclaimed liberty right

or so-called fundamental right to be free that they seek to bestow upon autonomous

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nonhuman animals. Instead, the dissenters conclude that the logical progression of our

common law runs from extending habeas to “abused women and children and enslaved

persons” (Wilson, J., dissenting op at 70, 16-36, see also Rivera, J. dissenting op at 5-9) to

granting an elephant the right to bring a habeas proceeding, an odious comparison with

concerning implications—as both dissenters acknowledge but one on which they

nevertheless rely. We are unpersuaded.

At bottom, even petitioner implicitly concedes that Happy is not guaranteed

freedom from captivity—the right to liberty—under the law. The relief requested is not

discharge from confinement altogether but, rather, a transfer of Happy from one

confinement to another of slightly different form—an implicit acknowledgement that

Happy, as a nonhuman animal, does not have a legally cognizable right to be at liberty

under New York law. The fact that the greatest relief which could be afforded Happy is a

transfer between lawful confinements demonstrates the incompatibility of habeas relief in

the nonhuman context inasmuch as, under New York law, the writ may be sustained only

when a person is entitled to immediate release from an unlawful restraint of liberty (see

Chakwin, 63 NY2d at 125; compare People ex rel. Brown v Johnston, 9 NY2d 482, 485

[1961] with People ex rel. Dawson v Smith, 69 NY2d 689, 691 [1986]).

Significantly, courts have consistently determined that rights and responsibilities

associated with legal personhood cannot be bestowed on nonhuman animals (see Lavery,

152 AD3d at 78; Lavery, 124 AD3d at 152; Rowley, 99 Mass App Ct 1104, *2; R.W.

Commerford and Sons, Inc., 192 Conn App at 45-46; cf. Tilikum ex rel. People for the

Ethical Treatment of Animals, Inc. v Sea World Parks & Entertainment, Inc., 842 F Supp

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2d 1259, 1263 [SD Cal 2012]; Lewis v Burger King, 344 Fed Appx 470, 472 [10th Cir

2009]; Cetacean Community v Bush, 386 F3d 1169, 1177-1178 [9th Cir 2004]; Citizens to

End Animal Suffering and Exploitation, Inc. v New England Aquarium, 836 F Supp 45, 49

[D Mass 1993]; Miles v City Council of Augusta, Ga., 710 F2d 1542, 1544 n 5 [11th Cir

1983]). As these courts have aptly observed, legal personhood is often connected with the

capacity, not just to benefit from the provision of legal rights, but also to assume legal

duties and social responsibilities (see R.W. Commerford and Sons, Inc., 192 Conn App at

46; Lavery, 152 AD3d at 78; Lavery, 124 AD3d at 151; Black’s Law Dictionary [11th ed

2019], person). Unlike the human species, which has the capacity to accept social

responsibilities and legal duties, nonhuman animals cannot—neither individually nor

collectively—be held legally accountable or required to fulfill obligations imposed by law.

Nor does any recognition of corporate and partnership entities as legal “persons”

lend support to petitioner’s claim. Corporations are simply legal constructs through which

human beings act (see Pembina Consol. Silver Mining & Milling Co. v Pennsylvania, 125

US 181, 189 [1888]) and corporate entities, unlike nonhuman animals, bear legal duties in

exchange for legal rights. Moreover, although corporations are deemed “persons” in some

legal contexts, courts have nonetheless recognized that corporate entities—which cannot

be held in custody—do not have liberty interests subject to the remedy of habeas corpus

(see United States v Mett, 65 F3d 1531, 1533 [9th Cir 1995]; United States v Pacific Ship

Repair & Fabricators, Inc., 979 F2d 856, * 2 [9th Cir 1992]; Waste Mgt. of Wisconsin, Inc.

v Fokakis, 614 F2d 138, 140-141 [7th Cir 1980]). Thus, any comparison between

nonhuman animals and corporations for these purposes is inapt and unavailing.

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Petitioner and our dissenting colleagues minimize the significance of petitioner’s

request that Happy be declared a legal person with a right to liberty safeguarded by the writ

of habeas, maintaining that affording such a remedy merely seeks to establish one right for

Happy that would allow her to live her remaining years in captivity but in a more natural

environment. To that end, petitioner asserts that any concerns raised by respondents or the

opposing amici regarding the potential proliferation of nonhuman animal claims on behalf

of elephants or other species are irrelevant to our determination today.

We cannot agree; to do so would be to turn a blind eye to the impact of any ruling

that elephants (or autonomous beings more generally) have liberty interests. A

determination that Happy, an elephant, may invoke habeas corpus to challenge her

confinement at the Bronx Zoo—a confinement both authorized and, by all indications,

compliant with state and federal statutory law and regulations—would have an enormous

destabilizing impact on modern society. It is not this Court’s role to make such a

determination. As the Appellate Court of Connecticut cautioned in dismissing similar

litigation by petitioner in that state, “[n]ot only would this case require us to recognize

elephants as ‘persons’ for purposes of habeas corpus, this recognition essentially would

require us to upend this state’s legal system to allow highly intelligent, if not all, nonhuman

animals the right to bring suit in a court of law” (R.W. Commerford and Sons, Inc., 192

Conn App at 44). Granting legal personhood to a nonhuman animal in such a manner

would have significant implications for the interactions of humans and animals in all facets

of life, including risking the disruption of property rights, the agricultural industry (among

others), and medical research efforts. Indeed, followed to its logical conclusion, such a

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determination would call into question the very premises underlying pet ownership, the use

of service animals, and the enlistment of animals in other forms of work. With no clear

standard for determining which species are entitled to access the writ, who has standing to

bring such claims on a nonhuman animal’s behalf, what parameters to apply in determining

whether a confinement is “unjust,” and whether “release” from a confinement otherwise

authorized by law is feasible or warranted in any particular case, courts would face grave

difficulty resolving the inevitable flood of petitions. Likewise, owners of numerous

nonhuman animal species—farmers, pet owners, military and police forces, researchers,

and zoos, to name just a few—would be forced to answer and defend those actions.

Tellingly, neither of our dissenting colleagues identify any intelligible standard

upon which to resolve these labyrinthine issues, which buttresses our conclusion that

habeas corpus—which exists to protect liberty interests—is not the appropriate forum to

resolve disputes concerning the confinement of nonhuman animals. Judge Wilson posits

that courts should engage in “a normative analysis that weighs the value of keeping the

[nonhuman animal] confined with the value of releasing the [nonhuman animal] from

confinement,” taking into consideration “[t]he value of the confinement” to the nonhuman

animal as well as the “value of the confinement to the captor and society” (Wilson, J.

dissenting op at 68). This, of course, bears no relationship to the merits analysis properly

undertaken in a habeas corpus proceeding, which asks whether the confinement—i.e., the

curtailment of liberty—is legal. Rather, relief would be dependent, not on the legality of

detention, but on a judge’s subjective determination of where the relator would be “better

off” (Wilson, J. dissenting op at 4). Such a balancing test would transform the great writ

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of habeas into a morass of confusing case-by-case inquiries apparently to be determined

by some subjective, amorphous, and evolving “normative” value system regarding the

treatment of nonhuman animals to which our own legislature has not subscribed.

Moreover, a standard weighing the nonhuman animal’s purported liberty interests against

the various interests of the claimed human captor does little to alleviate the asserted

wrongful subjugation of nonhuman animals. Judge Rivera, on the other hand, suggests that

liberty rights spring from “autonomy”—a term that is notably left undefined and which

could reasonably be applied to a vast number of species.

Judge Wilson also appears to contemplate some form of “functional intelligence”

test to limit the undeniably slippery slope his view would set us upon. But that is exactly

the test, as Judge Wilson himself makes clear (see Wilson, J. dissenting op at 14-15), that

cannot be used for human animals. All one can glean from Judge Wilson’s dissent is that

elephants qualify, ants do not. What of dolphins—or dogs? What about cows or pigs or

chickens—species routinely confined in conditions far more restrictive than the elephant

enclosure at the Bronx Zoo? Indeed, the dissenters’ wholly unsatisfactory attempts to

distinguish “domestic” animals from elephants despite their appreciable intelligence and

autonomy simply because they purportedly live “comfortably” among humans (Rivera, J.

dissenting op at 19) or are supposedly genetically predisposed to confinement (see Wilson,

J. dissenting op at 62-64) is divorced from practical reality, devoid of support, and

demonstrates the internally contradictory foundation on which their analyses are built.

Such arbitrary distinctions stand in clear contrast to our recognition that habeas is, and

always has been, the bulwark of human liberty rights. Moreover, giving a court authority

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to interpret the relevant “science” (Wilson, J. dissenting op at 59-65) so as to make

judgments regarding “who” deserves a right to “liberty” would have perilous implications

far beyond the issue here.

Simply put, granting legal personhood and attendant liberty rights to Happy, an

elephant, would not be an incremental step in “the slow process of decisional accretion”

regarding the scope and flexibility of the writ of habeas (Keitt, 18 NY2d at 263) but a

“sweeping pronouncement[]” of nonhuman animal personhood lacking in legal foundation

that would displace the carefully devised state and federal statutory frameworks governing

animal welfare (R.W. Commerford and Sons, Inc., 192 Conn App at 44). Thus, while this

litigation may invite consideration by others of questions that are the appropriate subject

of ethical, moral, religious, and philosophical debate, the legal issue presented is

straightforward. The use of habeas corpus as a vehicle to extend legal personhood beyond

living humans is not a matter for the courts (see Byrn v New York City Health & Hosps.

Corp., 31 NY2d 194, 203 [1972]).

Although nonhuman animals are not “persons” to whom the writ of habeas corpus

applies, the law already recognizes that they are not the equivalent of “things” or “objects.”

Unquestionably, nonhuman animals are sentient beings that, albeit without liberty rights,

have been afforded many special protections by the New York Legislature—long

considered a leader in animal welfare. For example, statutes prohibit and penalize the

torture, unjustifiable killing or harming, fighting, neglect, or abandonment of animals (see

Agriculture and Markets Law §§ 351, 353, 353-a, 355, 356). Recently enacted legislation

requires veterinarians to report suspected animal cruelty (see Education Law § 6714).

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Various statutes mandate minimum safety and welfare standards, or prohibit conduct

commonly known to be harmful to animals (see Agriculture and Markets Law §§ 47, 353-

b, 353-d, 353-f, 360, 362, 365, 368, 381). New York regulates the sale and care of certain

animals by pet dealers (see Agriculture and Markets Law §§ 354, 401) and the interference

with, and keeping of, wild animals, including endangered species (see ECL 11–0103 [6]

[e]; 11-0505; 11-0535; 11-0511; 11–0512).1 In addition to animal welfare laws, New York

permits the creation of a trust for the care of a designated domestic or pet animal (see EPTL

7-8.1) and courts may now consider the best interests of companion animals in determining

the appropriate placement of an animal during a divorce proceeding (see Domestic

Relations Law § 236, pt B, [5] [d] [15]). With respect to elephants specifically, New York

largely prohibits and penalizes the sale and import of ivory articles (see ECL §§ 11-0535-

a; 71-0924) and, in recognition that the state “should help assure the protection and welfare

of elephants” (L 2017, ch 333 § 2), New York has prohibited “person[s]” other than those

involved with accredited zoos and wildlife sanctuaries from using elephants in

entertainment acts (Agriculture and Markets Law § 380; see ECL 11-0540).

As the foregoing statutes demonstrate, New York law acknowledges that the

relationships between humans and nonhuman animals are varied and complex and, in many

contexts, the law clearly imposes a duty on humans to treat nonhuman animals with dignity

and respect. However, also implicit in these statutes is a plain endorsement of the legal

1
The federal Animal Welfare Act likewise regulates the treatment of animals in research,
testing, transport, exhibition, and sale (see generally 7 USC § 2131 et seq.) and various
federal laws codify protections for wildlife (see e.g. 16 USC § 1531 et seq. [the Endangered
Species Act]; 16 USC § 703 et seq. [Migratory Bird Treaty]).
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distinction between human beings and nonhuman animals (see Agriculture and Markets

Law § 350 [defining “animal” as including “every living creature except a human being”];

Agriculture and Markets Law § 380 [distinguishing between “person(s)” and “elephants”]).

While it is true that the courts—not the legislature—ultimately define the scope of the

common law writ of habeas corpus (see Sabatino, 246 NY at 261; Tweed, 60 NY at 566),

these statutory distinctions reflect the abiding view that nonhuman animals are not persons

with a common law right to liberty that may be secured through a writ of habeas corpus.2

We close with the observation that, despite the relative simplicity of the legal issue

presented, this case has garnered extraordinary interest from amici curiae and the public—

a testament to the complicated and ever-evolving relationship between human beings and

other animals. Though beyond the purview of the courts, we appreciate that the desire and

ability of our community to engage in a continuing dialogue regarding the protection and

welfare of nonhuman animals is an essential characteristic of our humanity. Such dialogue,

however, should be directed to the legislature.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

2
That legislative bodies have extended various statutory protections to nonhuman animals
does not inexorably create a common law or constitutional right to liberty. Nor can the
judicial displacement of a carefully crafted state and federal statutory and regulatory legal
framework governing animal care be justified by the views of some individuals that zoos
purportedly confine wild animals solely for “human entertainment” (Rivera, J. dissenting
op at 4)—a characterization of the purpose and mission of zoos to which the Bronx Zoo,
operated by a renowned wildlife organization that advances scientific research and
educational conservation efforts worldwide, would undoubtedly strenuously object.
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WILSON, J. (dissenting):

The Wildlife Conservation Society, formerly known as the New York Zoological

Society, has operated the Bronx Zoo for well over a century. In 1906, it placed Ota Benga,

a member of the Mbuti people, on display in the Zoo’s monkey house, behind iron bars.

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Two years earlier, Samuel Verner, a South Carolinian white supremacist, had been hired

to remove some so-called “pygmies” from what was then the Belgian Congo, for exhibition

at the St. Louis World’s Fair. Mr. Benga and eight others were exhibited there, after which

Mr. Verner transferred Mr. Benga to the Zoo for exhibition. The Zoo’s attendance doubled;

nearly a quarter of a million people came to the Zoo to view Mr. Benga. The New York

Times reported that Mr. Benga was “one of a race that scientists do not rate high in the

human scale” (NY Times, Bushman Shares a Cage with Bronx Park Apes, Sept. 9, 1906 at

17). When protests by African American ministers, led by the Reverend Dr. Robert Stuart

MacArthur, forced his release, the Zoo’s director, William Hornaday, wrote to New York

Mayor George McClellan, explaining that the exhibition of Mr. Benga in the monkey house

was “good comic-opera material” and that the ministers “are seeking newspaper notoriety,

rather than the redress of a real grievance” (Letter from William T. Hornaday to Mayor

George B. McClellan, Sept. 12, 1906, available at

https://wcs.access.preservica.com/uncategorized/IO_d20af6d6-8f81-4a58-b90c-

1a9f7b4662f1/).1 Mr. Benga never was returned home; he shot himself in the heart several

years later. During the pendency of this lawsuit, the Zoo apologized for its treatment of

Mr. Benga, and made its records concerning him publicly available for the first time.

Reverend MacArthur tellingly observed: “The person responsible for this exhibition

1
Mayor McClellan declined to meet with the ministers, directing them to take their
complaints to the Zoological Society’s founder and secretary, Madison Grant, the author
of a book entitled The Passing of the Great Race, “which advocated cleansing America of
‘inferior races’ through birth control, antimiscegenation and racial segregation laws, and
mass sterilization” (Pamela Newkirk, Spectacle: The Astonishing Life of Ota Benga 43
[2015]).
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degrades himself as much as he does the African” (NY Times, Man and Monkey Show

Disapproved by Clergy, Sept. 10, 1906 at 1).

That same Zoo has confined Happy the elephant for the past 40 years.

Unquestionably, Mr. Benga was a human being; Happy is not. Human beings should have

greater rights than elephants, if only because we make the rules. The crucial point from

both Mr. Benga’s and Happy’s confinement, though, is that both suffered greatly from

confinement that, though not in violation of any statutory law, produced little or no social

benefit. As Jeremy Bentham wrote several centuries ago:

“The day has been, I grieve to say in many places it is not yet
past, in which the greater part of the species, under the
denomination of slaves, have been treated by the law exactly
upon the same footing as, in England for example, the inferior
races of animals are still. The day may come, when the rest of
the animal creation may acquire those rights which never could
have been withholden from them but by the hand of
tyranny. . . . It may come one day to be recognized, that the
number of legs, the villosity of the skin, or the termination of
the os sacrum, are reasons equally insufficient for abandoning
a sensitive being to the same fate. What else is it that should
trace the insuperable line? . . . [T]he question is not, Can they
reason? nor, Can they talk? but Can they suffer?” (Jeremy
Bentham, An Introduction to the Principles of Morals and
Legislation 311 n1 [Oxford, Clarendon Press 1781] [emphasis
in original]).

They can and do, and that day is upon us.

The majority pays lip service to Happy’s intelligence, her undisputed existence as

“an autonomous and extraordinarily cognitively complex being” and legal entitlement to

“dignity and respect” (majority op, at 6, 16). It likewise trumpets the role of habeas corpus

as “the historic writ of liberty” that is “primary and fundamental” (id. at 7). Yet the

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majority devalues both in its attempt to mis-frame the question presented. The majority

erroneously claims that “the writ of habeas corpus is intended to protect the liberty right of

human beings,” and that habeas corpus is unavailable to Happy as a matter of law because

she is “not a ‘person’ subjected to illegal detention” (id. at 2), though knowing full well

that the writ was vigorously used to challenge the detention of slaves when, under law, they

were deemed chattel, and to challenge the detention of women and children who at that

time, though not chattel property, had no legal existence.

The question here is not whether Happy is a “person”—Happy is an elephant. The

question is not whether Happy’s detention violates some statute: historically, the Great

Writ of habeas corpus was used to challenge detentions that violated no statutory right and

were otherwise legal but, in a given case, unjust. Because this appeal comes on a motion

to dismiss, the legal question presented is whether the detention of an elephant can ever be

so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should

be made available under the common law. The history of the “‘greatest of all writs’” (id.

at 7, quoting People v Schildhaus, 8 NY2d 33, 36 [1960]) demonstrates that the majority’s

claimed reasons for refusing to extend it to Happy are groundless and inconsistent with its

role as “the historic writ of liberty” that “cannot be curtailed by legislative action” (id.,

quoting Tweed v Liscomb, 60 NY 559, 566 [1875]). Whether Happy’s conditions are grave

enough for the writ to issue, and whether, if so, she would be better off in a sanctuary, are

questions of fact as to which Supreme Court made no determination because it was

constrained by erroneous Appellate Division caselaw.

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There are several propositions on which the majority and I agree. The purpose of

the Great Writ is to secure liberty. The writ “originated in English law and has been a

steadfast pillar of our common law” (id. at 7, citing Preiser v Rodriguez, 411 US 475, 485

[1973]). The writ reaches both public and private detentions (id. at 6). The writ is used

only when “reason[s] of practicality and necessity” require it (id. at 8, quoting People ex

rel. Keitt v McMann, 18 NY2d 257, 262 [1966]). Article 70 of the CPLR does not (and

cannot) curtail the substance or reach of the writ; it specifies procedure only.

The majority offers numerous justifications for its conclusion that the writ must be

limited to humans, no matter how sophisticated, intelligent, self-aware or capable of

suffering an elephant is and no matter how severe the conditions of its confinement are. I

proceed as follows: (I) whether an elephant is a “person” or whether it can bear

responsibilities are irrelevant questions that obfuscate the genuine question presented; (II)

the history of the Great Writ demonstrates that courts have used and should use it to

enhance liberty when a captivity is unjust, even when the captor has statutory or common

law rights authorizing such captivities in general; (III) as with our society’s changed

understanding of the rights of enslaved persons, women and children, our understanding of

the cognitive and emotional makeup, needs and capabilities of elephants is far different

than it was in bygone times; (IV) the method by which courts modify the common law to

adapt it to societal changes and needs informs our Court’s role in adapting the Great Writ;

and (V) application of the above principles to Happy’s petition justifies use of the writ to

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examine whether her interest in liberty outweighs the Zoo’s interest in her continued

captivity.

I

Two contentions, one irrelevant and one to which the majority and lower courts

have offered an unsupportable answer, sow great confusion about the question raised by

this appeal. The first, irrelevant, contention is that an elephant is not a “person.” The

second, unsupportable, contention is that only humans can have rights.

A

Whether an elephant (or other animal) is a “person” is not relevant to determining

whether the writ of habeas corpus can be used to challenge a confinement. All can agree

that an elephant is not a member of the homo sapiens species. At the same time, an elephant

is not a desk chair or an earthworm; the majority, echoing Judge Fahey’s concurrence in

Matter of Nonhuman Rights Project, Inc. v Lavery (31 NY3d 1054 [2018]), offers that

animals are not “the equivalent of ‘things’ or ‘objects’” (majority op at 15). So the correct

question becomes: given what we know about the qualities an elephant has—and in

particular, the qualities Happy has—should the law afford her certain rights through habeas

corpus?

The idea that the definition of “person” constrains the allocation of rights arises

from three different ideas: (1) CPLR article 70, which concerns writs of habeas corpus,

uses the word “person”; (2) a combination of the facts that prior habeas cases concerned

human beings and animals have been considered property inexorably results in the
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conclusion that habeas corpus cannot reach animals; and (3) the relevant rights, if any, are

the rights of the subject of the confinement. The first two ideas have been conflated when

they should not be, and the third has been implied without any examination of its

soundness. I discuss each in turn.

1

CPLR 7002 provides, in relevant part:

“A person illegally imprisoned or otherwise restrained in his
liberty within the state . . . may petition without notice for a
writ of habeas corpus . . . . A judge . . . having evidence, in a
judicial proceeding before him, that any person is so detained
shall . . . issue a writ of habeas corpus for the relief of that
person” (emphasis added).

Although the court in Matter of Nonhuman Rights Project, Inc. v Lavery (152 AD3d

73, 77 [1st Dept 2017]) concluded that the use of the word “person” in the CPLR served to

restrict the writ to human beings, the court in People ex rel. Nonhuman Rights Project, Inc.

v. Lavery (124 AD3d 148 [3rd Dept 2014]) held to the contrary:

“The ‘Legislature did not intend to change the instances in
which the writ was available,’ which has been determined by
‘the slow process of decisional accretion’ (People ex rel. Keitt
v McMann, 18 NY2d 257, 263, 220 NE2d 653, 273 NYS2d
897 [1966]) [citation omitted]). Thus, we must look to the
common law surrounding the historic writ of habeas corpus to
ascertain the breadth of the writ’s reach” (id. at 150).

The majority correctly adopts part of the holding of the Third Department, by recognizing

that “although procedural aspects of the writ are governed by statute (see CPLR art 70),

the ‘writ cannot be abrogated, or its efficiency curtailed, by legislative action’ ( Tweed, 60

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NY at 566)” (majority op at 7). It does so for good reason: as we have previously

explained, “[a]lthough article 70 governs the procedure of the common-law writ of habeas

corpus, relief from illegal imprisonment by means of this remedial writ is not the creature

of any statute” (People ex rel. DeLia v Munsey, 26 NY3d 124, 130 [2015]).

Furthermore, the legislative history of article 70 demonstrates that the use of the

word “person” was meant to have no substantive component: “The drafters of the CPLR

made no attempt to specify the circumstances in which habeas corpus is a proper remedy.

This was viewed as a matter of substantive law” (Vincent C. Alexander, Practice

Commentaries, McKinney’s Cons Laws of NY, CPLR 7001). Just as “person” is used in

a juridical sense to refer to any entity, real or fictional, as to which a statute or rule of the

common law applies, “person” in CPLR article 70 is irrelevant to whether the writ can

extend beyond humans. Thus, the majority and I agree that article 70 has no bearing on

whether Happy may invoke the writ of habeas corpus to challenge her confinement.

2

In an attempt to prove that “the great writ protects the right to liberty of humans

because they are humans,” the majority links several incongruous citations: three cases that

contain no such holding; a statute declaring that New York owns all animals except those

privately held; another statute concerning dog ownership; and two cases from the 1800s

concerning animal ownership (majority op at 9 [emphasis in majority]). Preiser, Tweed

and Sisquoc Ranch did not involve any claim on behalf of animals, and the generic

language in them (e.g., “the writ is a remedy ‘by which a man is restored’ to liberty”

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[Preiser v Rodriguez, 411 US 475, 486 (1973)]; “the law ‘suffers to man, guilty or innocent,

to be deprived of his liberty’” [Tweed v Liscomb, 60 NY 559, 568 (1875)]) no more

excludes animals that it does women or children.2 The final case cited by the majority,

Sisquoc Ranch Co. v Roth (153 F 2d 437 [9th Cir 1946]) held that under federal (statutory)3

habeas, an agricultural employer, asserting injury to itself from the military conscription of

one of its employees, “is without standing to maintain this proceeding” (id. at 440).

As to the majority’s citation to statutes providing for ownership of animals, no one

doubts that animals can be owned, but ownership does not prevent the application of habeas

corpus to the owned subject, as is demonstrated in section II below, and not substantially

challenged by the majority. Finally, the remaining cases cited by the majority (Mullaly v

2
Preiser undercuts a different proposition of the majority’s—that confinement must be
unlawful to permit invocation of the Great Writ: “By the time the American Colonies
achieved independence, the use of habeas corpus to secure release from unlawful physical
confinement, whether judicially imposed or not, was thus an integral part of our common-
law heritage. . . . [O]ver the years, the writ of habeas corpus evolved as a remedy available
to effect discharge from any confinement contrary to the Constitution or fundamental law,
even though imposed pursuant to conviction by a court of competent jurisdiction” (411 US
at 485 [emphasis added]). Tweed, like Preiser, undercuts the majority’s restrictive
application of the Great Writ:
“Neither should the habeas corpus act, which judges have
‘revered as the bulwark of the Constitution, the magna charta
of personal rights,’ be shorn of its power and its glory by a
subtle and metaphysical interpretation; rather should it receive
a liberal construction, in harmony with its grand purpose, and
in disregard, if need be, of technical language used. This act
has always been construed in favor of, and not against, the
liberty of the subject and the citizen” (60 NY at 568-569).
3
The power of federal courts to issue writs of habeas corpus is not grounded in the common
law, but is purely statutory (Ex Parte Bollman, 8 US [4 Cranch] 75 [1807]). Accordingly,
federal decisions applying a more restrictive view of habeas corpus have no bearing on the
powers of common law courts such as ours.
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People, 86 NY 365 [1881] and Pierson v Post, 3 Cai R 175 [NY Sup Ct 1805]), establish

(irrelevantly) that animals can be owned, but sharply undermine the majority’s position.

Our decision in Mullaly noted that “[a]t common law the crime of larceny could not be

committed by feloniously taking and carrying away a dog,” but then wiped out that

common law rule on the ground that “[t]he artificial reasoning upon which these rules were

based are wholly inapplicable to modern society. Tempora mutantur et leges mutantur in

illis [Times change and the laws change with them]” (86 NY at 86 [emphasis in original]).

That proposition is at the core of my dissent. In the famous case of Pierson v Post, the

Supreme Court of Judicature (our predecessor) twice noted that wild animals (“ferae

naturae”) have “natural liberty” (3 Cai R at 178, 179)—a conclusion diametrically opposed

to the majority’s view that only human beings have natural liberty rights.

What is patent from the glommed-together authorities is that they do not prove

anything relevant here. Cases that do not raise an issue cannot be taken to resolve

something never at issue. Statutes or cases allowing that humans may own animals do not

establish that owned beings can have no justiciable rights. The question here is not

governed by any prior decision: it is novel. The novelty of an issue does not doom it to

failure: a novel habeas case freed an enslaved person; a novel habeas case removed a

woman from the subjugation of her husband; a novel habeas case removed a child from her

father’s presumptive dominion and transferred her to the custody of another (see infra

section II). More broadly, novel common law cases—of which habeas is a subset—have

advanced the law in countless areas (see infra section IV). The majority’s argument—“this

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has never been done before”—is an argument against all progress, one that flies in the face

of legal history. The correct approach is not to say, “this has never been done” and then

quit, but to ask, “should this now be done even though it hasn’t before, and why?”

3

A third source of confusion arises from an unstated misconception about rights.

Rights are interdependent on reciprocal rights. We tend to ask whether someone has a right

to free speech, or to a jury trial or to privacy in one’s home. But each of those implies

reciprocal rights—corresponding or even inverse rights that members of society have

against that person, for example: the right to be free from libelous speech; the right to

convict someone based on a jury’s determination of guilt; and the right to search a home

by obtaining a warrant. In Happy’s case, the value of liberty to Happy, however weak or

strong it is, animates Happy’s right to liberty, but that right is also affected by its reciprocal:

the right of the Zoo to confine Happy in the manner it has chosen, however weak or strong

that interest is. In the end, whatever right we define concerns not merely Happy’s interest

in liberty, but the Zoo’s interest in Happy’s captivity. Importantly, the choice in fixing that

right affects Happy and the Zoo, but also defines who we are or, in the case of habeas, who

we might want to be as a society. For that reason as well, it does not matter that Happy is

an elephant. Were a court to determine that the Zoo cannot confine her, that determination

would not merely define Happy’s rights, but the rights of the human captors as well.

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B

The majority and the prior decisions in the Appellate Division’s Lavery cases (152

AD3d 73; 124 AD3d 148) adopt the proposition that animals cannot have rights because

they cannot bear responsibilities.4 That proposition, apparently based vaguely on social

contract theory,5 confuses who can confer rights with who can hold rights. Elephants

cannot confer rights on humans, but humans can—and do—confer rights on animals in

abundance.

4
It is not even clear what is meant by “bearing responsibilities.” An estimated 70% of
Americans have committed a jailable offense, suggesting humans at least in our country
routinely renege on responsibilities society imposes on them (Stephen L. Carter, Law Puts
us All in Same Danger as Eric Garner, Bloomberg, Dec. 4, 2014, available at
https://www.bloomberg.com/opinion/articles/2014-12-04/law-puts-us-all-in-same-
danger-as-eric-garner#xj4y7vzkg). Meanwhile, stories of heroically responsible
animals—trained or not—abound (see, e.g., Melissa Chan, National Puppy Day 2017:
Here Are 5 Brave Dogs That Saved a Child's Life, Time, Mar. 22, 2017, available at
https://time.com/4709801/national-puppy-day-2017-dogs-save-children/). Dogs are
regularly put to work defending livestock, people and property; working for law
enforcement; and detecting various types of cancers in humans. The Navy has trained
dolphins and sea lions to protect sailors and Marines (Naval Information Warfare Center –
Pacific, U.S. Navy Marine Mammal Program, available at
https://www.niwcpacific.navy.mil/marine-mammal-program/ [accessed June 9, 2022]).
Happy, who could trample her caretakers, is responsible enough to know not to hurt them.
Elephants take care of their extended families much as human families do—perhaps better.
Thus, even the concept of “bearing responsibilities” imposes a human-centric idea of what
it means to be responsible for others or one’s own actions, and humans themselves may
often fall below that standard of responsibility.
5
Social contract theory begins with the premise that a broad set of freedoms exist in the
state of nature, and participants in the (theoretical) social contract agree to give up some of
those freedoms in exchange for the benefits of government and civilization. It is a tortuous
(though not impassible) route to conclude that the social contract grants rights by cutting
back at those rights that existed in the state of nature.
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It helps to start by understanding what a right consists of. A right consists of a

sphere of action protected from intrusion by others: “[d]uty and right are correlative; and

where a duty is imposed, there must be a right to have it performed” (Amberg v Kinley, 214

NY 531, 535 [1915], quoting Willy v Mulledy, 78 NY 310 [1879]). “In other words, if X

has a right against Y that he shall stay off the former’s land, the correlative (and equivalent)

is that Y is under a duty toward X to stay off the place” (Wesley Newcomb Hohfeld, Some

Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L J 16, 30-32

[1913]).

But the holder of a right need not have a duty at all. Humans can create a legal

system that confers rights on animals even if animals cannot bear duties, and even if

animals are unaware of the rights they have been granted. “Animals have many legal

rights, protected under both federal and state laws. In some instances, criminal statutes

punish those who violate statutory duties that protect animals” (Cetacean Community v

Bush, 386 F 3d 1169, 1175 [9th Cir 2004]). Humans have granted animals countless rights

without imposing any duties on them or even considering whether they are capable of

bearing duties. For example, 16 USC § 668 imposes a duty on humans not to capture or

kill a bald or golden eagle, enforced by fines and imprisonment; that duty establishes a

correlative right of bald and golden eagles to be free from capture by humans (except as

authorized by permit). The Endangered Species Act (16 USC § 1531 et seq.) gives all

animals falling within its purview the right not to be captured, harassed or harmed by

humans, and imposes a correlative duty on humans.

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Indeed, the very legislation the majority lists provides numerous rights to animals,

including the right not to be tortured, killed unjustifiably, abandoned or neglected; the right

to have medical providers report suspected cases of abuse; the right of domestic animals to

have trusts made in their behalf enforced by courts; and the right to have their best interests

considered when those with legal custody over them are divorcing (majority op at 15-16).

Notably, those rights parallel rights granted to children who, like animals, are not able to

enforce those rights themselves, and may not even understand that they possess them.

Neither of those conditions is necessary for someone—whether a child or an animal—to

possess rights. The fact that the numerous rights cataloged by the majority are granted by

statute does not change their character as rights; at most, it leaves open the question of

whether courts should grant rights to animals—not whether animals are capable of holding

rights.6

If the proposition that no rights may be awarded to a being who cannot shoulder

responsibilities were based on social contract theory, we could not explain why children or

profoundly disabled adults—who have no capacity to enter into a social contract—can be

6
Amici UK-Based Legal Academics, et al., explain that under either of the dominant
theories of rights (the “interest theory” and the “will theory”), the conditions for granting
a right to Happy would be met. Under the interest theory, Happy must have an interest in
liberty (or less restrictive confinement) and the decision to grant a right must be, at least in
part, for Happy’s own sake. Under the will theory, Happy must be able to exert some form
of normative control over correlative duty bearers, but that can be exercised by a
representative (public or private) acting in her behalf (see Brief of Amici Curiae Joe Wills,
et al., UK-Based Legal Academics, Barristers and Solicitors in Support of Petitioner-
Appellant, at 10-17).
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granted rights.7 To say, “they are part of the human species” is no answer, because social

contract theory does not propose that members of a species can bind other members of the

same species to a social contract without their consent. We grant children and disabled

persons rights simply because we, as a society, want to. Whether we do so because we see

ourselves in them, because God commands us to, because we fear a slippery slope of

eugenics, because we are charitably inclined, or for some other reason, does not matter; the

point is that we can, and constantly do, grant rights to living beings who bear no

responsibilities and may never be able to do so. 8

7
As our colleague Judge Fahey observed, “[e]ven if nonhuman animals cannot bear duties,
the same is true of human infants or comatose human adults, yet no one would suppose
that it is improper to seek a writ of habeas corpus on behalf of one’s infant child or parent
suffering from dementia” (Lavery, 31 NY3d at 1057 [Fahey, J., concurring]).
8
Like the United States, many other countries have given animals rights. The Supreme
Court of India—a country that shares an English common law heritage with the United
States—has recognized rights for animals. India’s Supreme Court has recognized that the
Indian Constitution’s due process clause applies to all species (Animal Welfare Bd. of India
v A. Nagaraja, 7 SCC 547 ¶ 62 [2014]). That court also interpreted the parens patriae
doctrine, which originated in English common law, as requiring the court “to take care of
the rights of animals, since they are unable to take care of themselves as against human
beings” (id. at ¶ 26; see Hawaii v Standard Oil Co. of Cal., 405 US 251, 257 [1972]
[describing the English constitutional system as the origin for the parens patriae doctrine,
which referred to the King’s power “as guardian of persons under legal disabilities to act
for themselves”]). Courts in other countries have granted habeas petitions on behalf of
animals (Presented by AFADA About the Chimpanzee “Cecilia” – Nonhuman Individual,
File No. P.72.254/15 [Third Court of Guarantees, Mendoez Argentina, Nov 3, 2016]
[granting a habeas petition brought on behalf of a chimpanzee in a zoo and ordering the
chimpanzee transferred to a sanctuary in Brazil]; Luis Domingo Gomez Maldonado contra
Corporacion Autonoma Regional de Caldas Corpocaldas, AHC4806-2017 [Supreme
Court of Colombia, Civil Cassation Chamber, July 26, 2017] [granting a habeas petition
brought on behalf of a bear and ordering the bear transferred to a more suitable habitat,
preferably an identified natural reserve]; see also Islamabad Wildlife Mgmt. Bd. v
Metropolitan Corp. Islamabad, Islamabad High Ct, Pakistan, May 21, 2020, Athar-
Minallah, C.J., W.P. No.1155/2019 [granting the petition filed on behalf of an elephant and
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Inherently, then, to whom to grant what rights is a normative determination, one that

changes (and has changed) over time. If society determines that humans should not torture

dogs, then dogs have a right to be free from torture. The dogs’ right to be free from torture

does not emanate from their ability to take on duties or responsibilities; instead, it emanates

from society’s determination that a sphere of action—the ability of dogs to exist without

being subjected to torture by humans—is a right worthy of protection.

Society’s determination as to whether elephants have a right to be free of oppressive

confinement, which they may test through habeas corpus, is not likely to be the same today

as it was 100 years ago. At its core, this case is about whether society’s norms have evolved

such that elephants like Happy should be able to file habeas petitions to challenge unjust

confinements. It is not about whether Happy is a person or whether Happy can bear

responsibilities or enter into a social contract. The degree to which courts, rather than

legislatures, should grant such rights is a wholly different question.

II

As the majority acknowledges, “[t]he centuries-old writ [of habeas corpus]

originated in English law and has been a steadfast pillar of our common law” (majority op

requiring the elephant’s transfer from a zoo to a sanctuary]). Native American tribes long
nurtured symbiotic relationships with animals in ways that “prohibited the physical and
spiritual mistreatment of animals since time immemorial” (Sarah Deer & Liz Murphy,
‘Animals May Take Pity On Us’: Using Traditional Tribal Beliefs to Address Animal Abuse
and Family Violence Within Tribal Nations, 43 Mitchell Hamline L Rev 703, 703-704,
706-718 [2017]; see also Angela Harris, Should People of Color Support Animal Rights?,
5 J Animal L 15, 28 [2009]).
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at 7). Its history and usage, both in England and the United States, resoundingly rejects

several of the majority’s contentions. Most fundamentally, the writ was used to grant

freedom to slaves, who were considered chattel with no legal rights or existence. Indeed,

the various rights held by animals today, as partially cataloged by the majority, are far

greater than those held by enslaved persons in England or America, who had none.

Similarly, the writ was used to grant freedom to wives and children, who, though not

chattel, had few or no legal rights and legally were under the dominion of husbands and

fathers. They, too, had rights that paled in comparison to those held by animals today.

Additionally, the writ was flexibly used to transfer custody when circumstances demanded

it, particularly in the case of children—a point contrary to the majority’s view that the writ

cannot be used to transfer custody from a miserable situation to one less fraught. Not only

does the history of the writ’s usage destroy the foundations of the majority’s contention, it

shows how the writ was used by enlightened judges to nudge advances in the law. By

freeing one enslaved person through a habeas petition, or removing one wife or child from

an abusive husband or father, a court did not change the law for all, but it did cast a light

on the underlying issues (slavery or the treatment of women and children), sparking public

debate and sometimes leading to broader legislative change.

Courts did not base their habeas corpus decisions on whether detention was illegal

under existing statutory or common law; instead, they conducted a case-by-case analysis

for each habeas petition, considering whether a petitioner’s confinement was unjust based

on a balancing of the benefits and harms of the confinement. Habeas petitions were not

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limited to detainment orchestrated or managed by the government; habeas equally reached

private confinements. It was common for third parties to file habeas petitions on behalf of

others who were confined. Running throughout these qualities of the Great Writ is the

maxim that habeas corpus is an innovative writ—one used to advocate for relief that was

slightly or significantly ahead of the statutory and common law of the time.

A

For at least a few thousand years, slavery was viewed as legitimate, even necessary.

The Code of Hammurabi, from circa 1772 BCE, prescribed death for anyone helping an

enslaved person to escape or housing an enslaved person who had run away (The Code of

Hammurabi §§ 15-16 [L.W. King trans.], available at

https://avalon.law.yale.edu/ancient/hamframe.asp). Other provisions punished enslaved

people themselves for certain actions or behaviors; for instance, if an enslaved person

struck a free man or denied enslavement, the Code called for cutting off one of the enslaved

person’s ears as punishment (id. §§ 205, 282).

In ancient Egypt, Greece, and Rome, war was the principal catalyst for enslavement.

Ancient Egypt, for example, enslaved the defeated soldiers of Nubian and Somali people

(James Walvin, A Short History of Slavery, Part I, ch 1 [2007]). In ancient Greece, slavery

was “basic to the conduct of Greek democratic life” because Greek citizens relied on

enslaved people for heavy physical tasks and domestic labor, freeing their time for civic

duties (id.). Aristotle described the enslaved person as “a living possession” who “wholly

belongs to [his master]” (Aristotle, Politics, Book I, Part IV). He viewed “the use made of

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slaves and of tame animals” as “not very different; for both with their bodies minister to

the needs of life” (id.). Victories of the Roman Empire across a vast geography resulted in

more than half a million enslaved persons annually for Rome (id.).

In the millennium after the fall of Rome, slavery persisted in Europe as a “mosaic

of systems, held together by trade and by slave-trading links” (Walvin, supra, at Part 1, ch

2). “Villeinage,” a vestige of feudalism, was an early form of unfree status in English

society (William M. Wiecek, The Origins of the Law of Slavery in British North America,

17 Cardozo L Rev 1711, 1716 [1996]). In 1547, England passed the (short-lived) Vagrancy

Act, which allowed for the enslavement for two years of “vagaboundes,” who could be

sold or leased by their owners, and for whom death by hanging was the penalty for escape

(id. at 1718). Thereafter, European slavery became reserved mostly for people of African

descent (id. at 1723-1724).

English slaveholders proceeded by action of trover—an action to protect chattel —

to enforce their rights in enslaved persons (id. at 1724). Eventually, as abolitionists began

to challenge the legitimacy of slavery, the King’s Bench held that trespass per quod

servitium amisit (trespass by which service is lost) would lie instead of trover; by which

change the court subtly suggested a different way of thinking about enslaved people (id.).

In the United States, slavery persisted longer than it did in England, and laws

institutionalized and protected it. Histories of African slavery in North America often

begin with the sale of 20 enslaved Africans by a Dutch ship captain to English settlers in

Jamestown, Virginia in 1619, but some enslaved Africans entered the colonies even earlier

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(David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World

124 [2006]). By the middle of the 17th century, the Dutch in New Netherland (now New

York) were more dependent on Black slave labor than the English in the colonies of

Virginia and Maryland (id.). The United States Constitution explicitly embedded slavery

in various ways (see, e.g., Paul Finkelman, The Founders and Slavery: Little Ventured,

Little Gained, 13 Yale J L & Humanities 413, 414-15, 427, 438 [2001]).

Constitutional law continued to “protect[] slavery and undermine[ ] the liberty of

free blacks” as the young country developed (Paul Finkelman, Race, Slavery, and Federal

Law, 1789-1804: The Creation of Proslavery Constitutional Law Before Marbury, 14 U St

Thomas L J 1 [2018]). Congress passed a fugitive slave law, rejected legislation that would

prevent the kidnapping of free Black people, prevented free Black people or enslaved

persons from carrying mail from one place to another, rejected immigrants who were Black

from naturalizing as citizens, and prevented free Black people from joining the military

(id.).

In 1808, Britain and the United States outlawed participation in the African slave

trade (Davis, Inhuman Bondage, supra, at xiv), but slavery remained a cornerstone of

society and economy, as the children of enslaved people were also considered enslaved.

Further limiting the rights of enslaved individuals and free individuals of African descent,

in 1857, the United States Supreme Court held in Dred Scott v Sandford that people of

African descent, whether enslaved or free, were not included as “citizens” under the United

States Constitution. Therefore, no Black individuals in the country were afforded the

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rights, privileges and immunities the Constitution provided to citizens (60 US 393 [1857]).

Counsel for Sandford argued that “the Constitution of the United States was never designed

to consider black men as citizens. It maintains throughout that man can have property in

man; and so sacred is this description of property, that the Constitution pledges the force

of the Union to protect it” (NY Times, The Argument in the Case of Dred Scott, Dec. 18,

1856 at 1). The Dred Scott decision was met with applause in the southern states, and

“[m]ost Northern Democrats accepted it and even praised it” (Paul Finkelman, Scott v.

Sandford: The Court’s Most Dreadful Case and How It Changed History, 82 Chi-Kent L

Rev 3, 5 [2007]).

It is against that long-entrenched background of legally sanctioned slavery that the

courts of England and the United States worked, through the Great Writ, to secure liberty

for those deemed chattel, equated, at most, with animals. Two seminal cases, one in

England (Sommersett’s Case), one in New York (the Lemmon Slave Case) show how the

Great Writ was flexibly used by the courts as a tool for innovation and social change.

The Sommersett case in England involved the use of habeas corpus to free a slave;

the case was celebrated by abolitionists, though its impact was incremental, not tidal.

James Sommersett was an enslaved Black man on whose behalf three abolitionists

submitted a habeas corpus petition (The Somersett Case, Howell’s State Trials, vol 200,

cols 1-6, 79-82, National Archives of the United Kingdom; see also Paul D. Halliday,

Habeas Corpus: From England to Empire 174 [2010]). The habeas petition alleged that

Mr. Sommersett was confined on a ship bound for Jamaica and sought his freedom (The

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Somersett Case, Howell’s State Trials, supra). Mr. Sommersett was enslaved by Charles

Steuart, who had purchased him in Virginia and brought him to England, where Mr.

Sommersett ran away (id.; Halliday, supra, at 174). Mr. Steuart then had Mr. Sommersett

seized and sent him to Jamaica to be sold as a slave (The Somersett Case, Howell’s State

Trials, supra).

Lord Mansfield granted Mr. Sommersett’s habeas petition, liberating him, but on

the narrow basis that Mr. Steuart’s return (what we would now describe as a verified

answer) filed in response to the habeas petition was insufficient (id.). Given the papers

before him, it was Lord Mansfield’s view that “[t]he only question before us is, whether

the cause on the return is sufficient[].” He characterized the return as merely stating that

Mr. Sommersett “departed and refused to serve; whereupon he was kept, to be sold abroad”

(id.). Lord Mansfield included strong language criticizing slavery, stating for example that

slavery “is so odious, that nothing can be suffered to support it, but positive law” (id.).

Nonetheless, the narrow basis of his ruling revealed “the Janus-faced quality of habeas

corpus: that it could do so much, and so little, at once” (Halliday, supra, at 175). James

Sommersett’s case illustrates the opportunity and limitations of habeas corpus. The writ is

a procedural tool with a storied history of opportunity for challenging social norms, but

one inherently limited by its necessarily case-by-case approach.

In Lemmon v People, our own Court upheld the grant of a habeas petition brought

on behalf of eight slaves seeking liberation from their incarceration in a house in

Richmond, New York (20 NY 562 [1860]). Juliet Lemmon claimed that the eight

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individuals were her slaves and that she was in transit between Virginia and Texas, both of

which were slave states, when she had to stop in New York out of necessity. She further

claimed that she never intended to sell her slaves. Louis Napoleon, a free Black New

Yorker active in the abolitionist movement, commenced a habeas petition on behalf of

Lemmon’s slaves upon learning of their arrival. Judge Elijah Paine heard the habeas

petition. He granted the petition, considered its merits, and ruled that the eight slaves were

now free. Judge Paine based his ruling on two principles: first, because Juliet Lemmon

had voluntarily brought her slaves into New York, a New York statute emancipated them;

and second, “and of greater historical importance, however, Judge Paine ruled the slaves

free based on a higher moral authority. ‘Beyond New York law,’ Judge Paine wrote, ‘by

the law of nature no one can have a property in slaves’” (Historical Society of the New

York Courts, The Lemmon Slave Case, available at https://history.nycourts.gov/the-

lemmon-slave-case/ [accessed June 9, 2022]). Chief Judge DiFiore recently lauded Judge

Paine as “courageous” and “heroic” for his grant of habeas corpus freeing Ms. Lemmon’s

slaves (id., Video Introduction at 0:31, 1:14).

The Court of Appeals affirmed Judge Paine’s decision. In doing so, it rejected Ms.

Lemmon’s argument that the enslaved persons remained her property because “[no]

civilized State on Earth can maintain this absolute outlawry of negro slavery; for in some

of its forms slavery has existed in all ages” (Report of the Lemmon Case 19 [1860],

available at https://www.loc.gov/item/03020167/). In affirming Judge Paine’s decision

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granting relief through the Great Writ, Judge William B. Wright, joined by three judges,

sharply criticized the institution of slavery:

“. . . for slavery is repugnant to natural justice and right, has no
support in any principle of international law, and is
antagonistic to the genius and spirit of republican government.
Besides, liberty is the natural condition of men, and is world-
wide: whilst slavery is local, and beginning in physical force,
can only be supported and sustained by positive law.
‘Slavery,’ says Montesquieu, ‘not only violates the laws of
nature and of civil society; it also wounds the best forms of
government; in a democracy where all men are equal slavery
is contrary to the spirit of the Constitution’” (Lemmon, 20 NY
at 617).

The Lemmon case illustrates how courts have used and should use the common law

writ of habeas corpus to expand liberty interests that were not just controversial at the time,

but denied by “positive” law legitimizing slavery. Three years earlier, the United States

Supreme Court had decided Dred Scott v Sandford, in which it rejected Mr. Scott’s claim

that though he was enslaved in Missouri, he became free when his owners took him to a

state where slavery was illegal (60 US 393 [1857]). “The Court of Appeals ruling in [the

Lemmon Slave] case was in direct conflict with the Supreme Court’s infamous Dred Scott

decision of 1857 and it represented one of the most unyielding anti-slavery decisions made

by any Court in the United States prior to the Civil War” (NY St Unified Court System,

The Lemmon Case: 1852-1860: Freedom Won for Eight Enslaved People in New York

and Justice Takes a Step Forward, Message from Chief Judge Janet DiFiore, available at

http://ww2.nycourts.gov/courts/9jd/lemmon_slave_case.shtml [accessed June 9, 2022]).

Thus, even a direct conflict with the U.S. Supreme Court’s decision in Dred Scott did not

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stop our Court from affirming the use of the Great Writ to free eight enslaved individuals

who Ms. Lemmon considered her property.

As with Mr. Sommersett’s case, the Lemmon case did not end slavery; it freed only

the subjects of the habeas petition before the Court. But it added Judge Paine’s voice, and

the voice of our Court, to the side of abolishing slavery. A scant nine months later, South

Carolina identified as one of the “immediate causes” of its decision to secede “the action

of the non-slaveholding States . . . [which] have denied the rights of property established

in fifteen of the States and recognized by the Constitution; they have denounced as sinful

the institution of slavery” (Confederate States of America - Declaration of the Immediate

Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,

Yale Law School Lillian Goldman Law Library, the Avalon Project: Documents in Law,

History and Diplomacy, available at

https://avalon.law.yale.edu/19th_century/csa_scarsec.asp).

Underscoring the import of the Lemmon case, and as a result the import of the Great

Writ as well, the New York State Unified Court System recently launched a traveling

exhibition extolling the Lemmon decision (see NY St Unified Court System, The Lemmon

Case, supra).9

B

9
New York was not the only jurisdiction to use habeas corpus to recognize a liberty right
in people legally considered chattel (see Jackson v Bulloch, 12 Con 38 [1837]).
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Like slavery, women’s treatment as inferior to men has a long history. Aristotle

wrote that “the relation of male to female is by nature a relation of superior to inferior and

ruler to ruled” (Ian Broinowski, The Pakana Voice [2020]). According to Martin Luther,

women have “a mind weaker than man” (Martin Luther, Commentary on Genesis, ch 2,

Part V, 27b [1545]); according to John Calvin, “all women are born, that they may

acknowledge themselves inferior in consequence of the superiority of the male sex” (John

Calvin, Commentary on 1 Corinthians, 1 Corinthians 11: 1-16, at 299); according to

Charles Darwin, “[t]he chief distinction in the intellectual powers of the two sexes is shewn

by man attaining to a higher eminence, in whatever he takes up, than can women—whether

requiring deep thought, reason, or imagination, or merely the use of the senses and hands”

(Charles Darwin, Descent of Man 564 [1896]); and according to Napoleon Bonaparte,

“[n]ature intended women to be our slaves . . . What a mad idea to demand equality for

women! They are our property, we are not theirs” (Emil Ludwig, Napoleon 599-600 [Eden

& Cedar Paul trans. 1926]). The process of liberating women from those noxious views

was advanced through the application of the writ of habeas corpus, though, as with racial

discrimination, harmful and discriminatory views about women have not been eradicated

even today.

Under English common law, “husband and wife [were] one person in law,” or in

other words, “the very being or legal existence of the woman is suspended during the

marriage, or at least is incorporated and consolidated into that of the husband” (1 William

Blackstone, Commentaries, ch 15). During marriage, “a wife simply had no legal

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existence. She became, in the words of the Seneca Falls Declaration of Sentiments, ‘civilly

dead’” (Claudia Zaher, When a Woman’s Marital Status Determined Her Legal Status: A

Research Guide on the Common Law Doctrine of Coverture, 94 Law Libr J. 459, 460

[2002]). That rule was called “coverture” (Blackstone, Commentaries, ch 15). Under

coverture, any property or debt belonging to a woman became her husband’s property upon

marriage (see id.). Because a woman’s legal identity was erased upon marriage, the

common law granted husbands the right to beat their wives to “chastise” them (id. [“(B)y

an old law, a husband was justified in using moderate correction against his wife but barred

from serious violence”]).

The definition of rape under English common law did not include sexual assaults

by husbands against wives (Jill Elaine Hasday, Contest and Consent: A Legal History of

Marital Rape, 88 Cal L Rev 1373, 1391 [2000]). As a leading treatise on criminal law

stated, “the true reason why the husband, who has sexual intercourse with his wife against

her will, is not guilty of rape is that such intercourse is not unlawful. . . . Sexual intercourse

between husband and wife is sanctioned by law; all other sexual intercourse is unlawful”

(Rollin Morris Perkins, Criminal Law 110 [1982]). As Chief Justice Lord Matthew Hale

wrote, “the husband cannot be guilty of a rape committed by himself upon his lawful wife,

for by their mutual matrimonial consent and contract the wife hath given up herself in this

kind unto her husband, which she cannot retract” (id.).

American jurisdiction adopted the English common law, and coverture limited the

rights of women in early America. In the 18th century, coverture deprived American

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married women of their property, which husbands came to own in fee simple. Husbands

could possess, use and mortgage the property they gained from marrying women, and

creditors could seize that property or interest in the property (Joan C. Williams, Married

Women and Property, 1 Va J Soc Poly & L 383, 385 [1994]).

New York courts implemented English common law and placed obstacles to

women’s divorce and to married women having any property rights (Richard A. Dollinger,

Judicial Intervention: The Judges Who Paved the Road to Seneca Falls in 1848, 12 Judicial

Notice 4, 5 [2017]). The New York Legislature started to erode the doctrine of coverture

beginning in 1828 through trusts that could retain some property rights for married women,

but those changes were slow and minimal (id.). In 1837, assemblyperson Thomas Herttell

introduced a bill that would have allowed women to retain after marriage all property

owned at the time of marriage. He called the doctrine of coverture “uncomfortably close”

to slavery, which had been outlawed in New York ten years prior, asserting that “[o]nly

her husband’s inability to sell her outright saved her from the status of an unqualified slave”

(id.). The bill failed to emerge from the Assembly, let alone become law (id.). In the

1840s, “bills related to women’s property flooded the legislature,” but the legislature

refused to pass any reform for women’s rights (id. at 8).

Against that background, the courts of England and the United States used the Great

Writ to grant relief to women and children in the face of statutory and common law

rendering their mistreatment by men lawful. Habeas corpus freed Catherine Marsden, for

example, when her husband—who had abandoned her but, upon learning that she had

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begun proceedings in the church courts seeking to have him pay maintenance to support

her and their children, lured her to his city on the pretense of reconciliation and then locked

her in a hayloft (Halliday, supra, at 46-47).10 Thus, although the common law gave her

husband legal dominion over her, the court used the writ of habeas corpus to order her

release.

Similarly, before Lady Rawlinson remarried, she put her estate out of the reach of

her groom, Michael Lister. The marriage failed; divorce being out of the question, the

couple made a deed of separation, which worked until Mr. Lister wanted more money.

Lady Rawlinson refused, and Mr. Lister and an accomplice kidnapped her as she left

church, hiding her in a remote location. Responding to a writ of habeas corpus procured

on her behalf, Mr. Lister argued, “by law, the husband has coercive power over the wife”

(id. at 177). King’s Bench agreed with that legal proposition, but relied on the separation

agreement to hold that Mr. Lister’s right to restrain his wife had been eroded, and ordered

Lady Rawlinson’s release (id.).

As another example, habeas corpus could limit a father’s custody of his children,

even though the common law in 18th century England vested custody of children in the

father, not the mother. Anne Bissell was a six-year-old child at the center of a custody

dispute in 1774 (id. at 131). After Anne’s mother had fled with Anne due to her husband’s

mistreatment, Anne’s father used habeas corpus to force Anne’s mother to bring Anne to

10
Professor Halliday’s methodology involved examining all writs of habeas corpus ad
subjiciendum issued from the King’s Bench every fourth year from 1502 to 1798, inclusive,
yielding a total of 2,757 individual subjects (Halliday, supra, at 319).
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court (id.). Lord Mansfield, overseeing the habeas case, acknowledged that “the natural

right is with the father” but given the father’s inappropriate conduct toward the mother,

and his bankruptcy, decided to “do what shall appear best for the child” (id.). Through his

resolution of the case, Lord Mansfield “assigned custody in defiance of the father’s

expectation, supported by common law, that custody should be his. As in all habeas

decisions, the court declared the bounds of jurisdiction, even the jurisdiction of fathers”

(id.). The early English cases of Mrs. Marsden, Lady Rawlinson and Anne Bissell show

that courts employed the Great Writ to challenge and bypass controlling statutory and

common law when deciding habeas corpus petitions; the writ allowed courts to assess each

case individually and whether the confinement was unjust based on fairness and a

balancing of interests.

Further underscoring the flexibility of the Great Writ, its history evinces that habeas

corpus could be used to transfer custody from one confinement, if determined to be

unlawful, to another type of custody; habeas petitions were not required to seek or result

in total liberation as the remedy. That aspect of habeas corpus is evident across issues

impacting children, women, and enslaved people. Frances Howland was a ten-year-old

child over whom custody had been assigned to Mary Johnson (id. at 128). Frances’s uncle,

however, filed a habeas petition to bring Frances into court, arguing that his brother’s will

made him guardian. The Justices considering his claim wrestled with whether they could

change Frances’s custody or whether they were allowed to “only set her at liberty” because

the case arose from a habeas petition. They decided the former, changing the custody of

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Frances from Ms. Johnson to Frances’s uncle, even though Frances was “very unwilling”

to leave Ms. Johnson. The 1724 decision “marked a step in a new direction: using the writ

to assign custody, not simply to release from it” (id. at 128-129). Anne Bissell’s transfer

from the custody of her mother to a school where both of her parents could visit her,

deemed to be in her best interest (which was not then a concept in the common law or

statute), occurred 50 years after Frances’s case, suggesting the “new direction” of using

habeas corpus to transfer custody had become a norm.

In the case of Bridget Hyde—a young teenager living with her mother and step-

father (Sir Robert Viner, Lord Mayor of London) but claimed by John Emerton as his

wife—the King’s Bench issued writs of habeas corpus on the Lord Mayor to produce

Bridget in court, and then, Lord Chief Justice Hale, in a striking bit of innovation, “bad[e]

her take her choice who she would go to”: to Emerton or Viner (id. at 125). Indeed, other

decisions by Chief Justice Hale further reflect an understanding that the writ could innovate

to meet society’s evolving notions of fairness. “During Hale’s five years overseeing King’s

Bench, we find the first writs used by wives against abusive husbands, as well as the first

writs employed to bring in women to swear articles of the peace; to resolve a child custody

dispute; and to explore the detention of an alleged ‘lunatic’” (id.).

Women also used habeas corpus to transfer custody from their husbands to their

parents. As discussed, women in 18th century England had severely restricted rights, and

society defined them by their relationships to their fathers when unmarried and to their

husbands when married (Elizbeth Foyster, At the Limits of Liberty: Married Women and

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Confinement in Eighteenth-Century England, 17 Continuity & Change 39, 49 [2002]).

Custody transfer arose when abused women fled to their parents (id.). Husbands would

file habeas corpus petitions seeking to order their wives transferred back to their own

households, while parents would argue “that by their physical cruelty husbands had

relinquished their rights to custody of their daughters” (id.).

Habeas petitions were also filed on behalf of women who were confined or sent to

madhouses by their husbands, as well as on behalf of husbands seeking to regain custody

of their wives when their wives escaped and obtained refuge in other households (id. at

42). In those contexts, the writ made the King’s Bench a “forum where the boundaries of

men’s rights and women’s freedoms were tested” (id.). Private “madhouses,” which

proliferated in the 18th century, gave husbands another tool to control their wives:

husbands could send their wives to minimally regulated madhouses on claims that their

wives were insane when, in reality, their wives merely failed to obey their orders (id. at

47). In response, women or people acting on their behalf filed habeas petitions. A habeas

petition freed Jane, the wife of Thomas Taylor, after Thomas allegedly detained her for

three months in their house, keeping the front door locked, the back door nailed shut, and

the windows boarded (id. at 44). According to the affidavits in support of Jane’s release,

Thomas did not let Jane leave the home, would have a servant deliver bread, water, and

medicine through Jane’s window, and would severely beat her (id.). The affidavits were

filed after Jane passed letters through a hole in her window begging for help (id.). A habeas

petition secured the release of Deborah D’Vebre—who had been confined in a madhouse

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by her husband—after a doctor inspected her and determined that he could not see “the

least ground or foundation for confining her in the said madhouse” (id.). For women like

Jane and Deborah, “[t]he writ [of habeas corpus] acted as a lifeline for freedom” (id. at 49),

used to overcome their husbands’ common law right to restrain them.

Finally, habeas corpus was used to transfer custody in the context of slavery as well.

When abolitionists attempted to use habeas corpus to retrieve Thomas Lewis, an enslaved

person, from a ship about to sail for Jamaica, Lord Mansfield explained that previous

habeas corpus petitions he had granted for enslaved persons who had been impressed into

navy service were not meant to “free slaves, but to move them from one form of involuntary

labor to another: to retrieve them from the navy’s service so they could return to their

masters’ service, in the same manner that habeas was used to retrieve runaway apprentices

from impressment” (Halliday, supra, at 174-175).

The flexibility of the Great Writ made it an innovative writ that could challenge

existing laws and social norms and inch society toward dramatic changes. The writ of

habeas corpus “encouraged the justices to do much more than declare a prisoner remanded,

bailed or discharged” (id. at 101). Instead, the writ became a vehicle for judges to negotiate

settlements between parties, and judges’ role in those negotiations involved

“constraining—sometimes undermining—the statutes or customs on which other

magistrates acted” (id.). Through that process, “the justices defined what counted as

jurisdiction and what counted as liberties” (id.). The “flexibility, creativity, and widening

purview” vested in judges through habeas corpus led to judges “broaden[ing] the principles

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that legitimated a widening oversight of detention in all forms” (id.). Thus, within that

“widening oversight,” habeas was used to challenge abusive husbands in the 1670s, to

question detentions justified by concerns of state safety in the last decade of the 17th

century, and to “oversee other forms of detention that involved no wrongdoing” such as

“apprenticeship, slavery, and naval impressment” in the mid-18th century (id.).

The same qualities and uses of the writ found in English history are evident in the

United States as well. The writ of habeas corpus was understood as a means for women

and children to challenge confinement or custody. As in England, women had severely

restricted rights under coverture in America, and their husbands had a legal right to restrain

them, but if the husband “restrain[ed] [his wife] of her liberty unreasonably, or

imprison[ed] her, she may have relief by habeas corpus” (1 Zephaniah Swift, A System of

the Laws of the State of Connecticut 1795, at 201).

Abbott v Abbott, an 1877 case from the Maine Supreme Judicial Court, is one

example of the vast power men had over their wives and the availability of habeas corpus

as one of the few possible remedies. In Abbott, the court held that a woman could not sue

her former husband in tort for forcibly carrying her to an insane asylum, because the

doctrine of coverture gave rise to no cause of action for violence by the husband to the

wife, as their identities merged upon marriage (Abbott v Abbott, 67 Me 304 [1877]). The

court, however, observed that “the married woman has remedy enough”: the criminal

courts, prosecution for divorce at her husband’s expense, and “the privilege of the writ of

habeas corpus, if unlawfully restrained” (id. at 307 [emphasis in original]; see also Main

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v Main, 46 Ill App 106, 107-108 [Ill App Ct – 3d Dist 1892] [holding that, as in Abbott, a

woman could not sue her husband for forcibly admitting her into an insane asylum but

observing that the woman is “not without protection” because she could pursue criminal

charges, sue for divorce, and “may have a writ of habeas corpus if unlawfully restrained”]).

As in England, the writ was used to transfer custody of children from one parent to

another for children “under the age of discretion”; courts upon granting the writ would

determine who should obtain custody of the child (see Dallin H. Oaks, Habeas Corpus in

the States: 1776-1865, 32 U Chi L Rev 243, 270-271, 273-274 [1965]; see, e.g., Mercein

v People ex rel. Barry, 25 Wend 64 [Court for the Correction of Errors of New York 1840];

People ex rel. Olmstead v Olmstead, 27 Barb 9 [NY Sup Ct 1857]). Indeed, “[t]here [were]

numerous cases where courts asserted and exercised their powers to resolve issues on the

guardianship of young children by habeas corpus” (Oakes, supra, at 274). Parents also

used habeas corpus to regain custody of children who enlisted in the Civil War without

their consent (see Frances M. Clarke & Rebecca Jo Plant, No Minor Matter: Underage

Soldiers, Parents, and the Nationalization of Habeas Corpus in Civil War America, 35

Law & Hist Rev 881 [2017]).

C

As with Sommersett’s Case and the Lemmon Slave Case, the cases liberating women

and children did not bring an end to those abuses on a wholesale basis. Because of the

inherently case-by-case way in which habeas corpus works, each case acted directly only

on the particular petitioner seeking relief. However, those cases did spark dialogue and

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change on a broader scale. The decisions liberating women from “madhouses” provide a

helpful illustration. Those cases did not lead to a wholesale closure of such institutions or

a release of all or most women confined in them, but the writs increased public awareness

that led to significant legislative reform. Through habeas corpus, “[t]he stories told in the

King’s Bench about wives who were wrongfully confined in private madhouses

contributed to public awareness of the abuses of these institutions” (Foyster, supra, at 52).

First heard in court, the injustices of private madhouses became widely reported,

“provok[ing] public alarm and mounting criticism [that] eventually led to the 1774 Act for

Regulating Private Madhouses” (id.). Though that Act failed to eliminate all the ills of

madhouses, its enactment shows how the innovative quality of the writ of habeas corpus

can lead to broader social change. The writ is a tool for society to challenge confinement,

construed broadly, and can document and raise awareness of injustices that may warrant

legislative, policy, or social solutions.

The important points from the history and use of the Great Writ can be summarized

as follows: first, even when positive (statutory or common) law renders a confinement

lawful, the writ may be used to challenge a particular confinement as unjust based on the

particular circumstances; second, the writ may be invoked on behalf of chattel (enslaved

persons) or persons with negligible rights and no independent legal existence (women and

children); third, it is a proper judicial use of the writ to employ it to challenge conventional

laws and norms that have become outmoded or recognized to be of dubious or contested

ethical soundness; and finally, the writ may be used to transfer a petitioner from an onerous

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custody to a less onerous custody. That leaves us here: animals can and do bear rights,

and courts can use habeas corpus to grant rights to anyone regardless of their legal status

as a person, even when positive law says otherwise. The remaining, and only real, question

in this case is, when should they?

III

As human knowledge of animal capabilities and needs has increased over the past

centuries, social norms concerning human treatment of animals, and the rights granted to

them, have also changed significantly. Whether an elephant could have petitioned for

habeas corpus in the 18th century is a different question from whether an elephant can do

so today because we know much more about elephant cognition, social organization,

behaviors and needs than we did in past centuries, and our laws and norms have changed

in response to our improved knowledge of animals.

A

Early America had a strictly property-based view of animals. Over the last two

centuries, that view has greatly eroded. Through most of the 19th century, animals were

seen and treated as property and were used by humans for both entertainment and hard

labor. A particularly troubling example of animals’ use for entertainment was the practice

of wealthy individuals and families watching “vivisections,” or dissections of unsedated

live animals (Claire Priest, Enforcing Sympathy: Animal Cruelty Doctrine after the Civil

War, 44 L & Social Inquiry 136, 143 [2019]). The first efforts to rein in animal cruelty

were facilitated under the public nuisance doctrine, which operated only when the cruelty
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occurred in public, or under causes of action protecting an owner’s property rights in an

animal (including the malicious mischief doctrine) when a third party interfered with an

owner’s property rights in an animal by harming it (id.). Under those doctrines, infliction

of undue or excessive suffering on animals was regulated because of the effect it had on

humans in society. Animal cruelty was punished through the public nuisance doctrine

because the cruelty disturbed the peace for members of society enjoying public spaces. It

was punished through the malicious mischief doctrine because it damaged someone’s

property. Thus, initial laws protecting animals did not expressly do so for the welfare of

the animal per se.

In 1828, New York became the first state to enact an anticruelty law applying to

animals (id. at 146-147). The statute made it a misdemeanor to “maliciously kill, maim,

or wound any horse, ox, or other cattle, or sheep, belonging to another,” or to “maliciously

and cruelly beat or torture any such animal, whether belonging to himself or to another”

(id.). Nineteen other states followed suit with similar statutes by 1865 (id.). However,

those statutes were largely interpreted as mere legislative reiterations of the preexisting

common law rules of public nuisance and malicious mischief (id.).

A major shift occurred after the Civil War, when the animal welfare movement grew

significantly. Advocates’ concern for animal suffering and a “widespread desire for greater

social control” contributed to the rise of the movement (id. at 148, 150). The American

Society for the Prevention of Cruelty to Animals (ASPCA) was founded in New York in

1866. ASPCA’s successful lobbying led to the enactment of an expansive anti-cruelty

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statute in 1867 that criminalized the infliction of pain on animals and empowered the

ASPCA itself to investigate and prosecute people for animal cruelty—an extraordinary

power for a nongovernmental organization (see Davis v Am. Soc’y for Prevention of

Cruelty to Animals, 75 NY 362 [1878] [refusing to enjoin the President of the ASPCA from

making arrests of persons he determined were cruelly slaughtering hogs]). The growing

prosecutions and developments in the law signaled a shift in view toward animals: animal

suffering was no longer simply seen as evil because of its effect on humans and society,

but was now also viewed as an evil due to its effect on animals themselves.

States across the country enacted animal cruelty laws like New York’s after the Civil

War. This time, courts did not interpret the statutes to restrict them to the public nuisance

and malicious mischief doctrines (Priest, supra, at 156). Instead, court decisions reflected

the shift toward considering suffering from the animals’ perspectives (id. at 156-157). The

Arkansas Supreme Court, for example, considered the state’s new anticruelty acts as “not

made for the protection of the absolute or relative rights of persons, or the rights of men to

the acquisition and enjoyment of property, or the peace of society” (id. at 157, quoting

Grise v State, 37 Ark 456, 457 [1881]). Instead, the statutes “seem[ed] to recognize and

attempt to protect some abstract rights in all that animate creation, made subject to man by

the creation, from the largest and noblest to the smallest and most insignificant” (id.).

Reflecting that more expansive view of the post-Civil War anti-cruelty statutes, courts

across states eliminated intent or malice elements previously required in animal cruelty

offenses (id. at 160).

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The history of abolition and other human-centered movements and the history of

the animal welfare movement intersected in some meaningful ways. Through the Civil

War, the “abolition of slavery and the horror of battle—documented in thousands of

wartime photographs of dead soldiers and horses—brought suffering and human rights to

a national audience, therefore catalyzing a national movement” (Janet M. Davis, The

History of Animal Protection in the United States, Organization of American Historians

[May 27, 2022], https://www.oah.org/tah/issues/2015/november/the-history-of-animal-

protection-in-the-united-states/). In the post-Civil war era, “[a]nimal protectionists

believed that creaturely kindness was a marker of advanced civilization, which could

rectify a fractured nation and world” (id.). Indeed, there were direct ties between

abolitionists and animal welfare advocates in America (id.; see also Priest, supra, at 148),

and even more direct ties between the abolition and animal rights movements in Britain

(id.). In the United States, the animal rights movement also may have contributed to

modern interventionist and liberal ideas about government, and animal rights groups began

thinking about cruelty against human children (see Davis, History of Animal Protection,

supra). Animal protection groups created broader “humane societies” that “safeguarded

animals and children under a singular protected fold, positing that helpless ‘beasts and

babes’ had a right to protection because they could suffer” (id.). Historians saw these

movements—toward abolition, animal rights, and child welfare—as moving in lockstep,

through “an almost simultaneous development of antislavery sentiment, advocacy for

animal welfare, diminished use of torture, and hostility to the use of corporal punishment

to discipline children, prisoners, sailors, and women” (Priest, supra, at 148).

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Other forces may have been simultaneously at work. Charles Darwin’s On the

Origin of the Species, published in 1859, established an evolutionary connection between

humans and animals, and Darwin himself drafted legislation aimed at reducing animal

suffering (Eric Michael Johnson, Charles Darwin and the Vivisection Outrage, Scientific

American, Oct. 6, 2011, available at https://blogs.scientificamerican.com/primate-

diaries/vivisection-outrage/#). Likewise, under a variety of late 19th century influences,

“including transcendentalism, Theosophy, Buddhism, Hinduism and Darwinism, the

concept of animals as rational, intelligent, and possessing souls that could survive bodily

death gained popular acceptance” (A. W. H. Bates, Have Animals Souls? The Late-

Nineteenth Century Spiritual Revival and Animal Welfare, in Anti-Vivisection and the

Profession of Medicine in Britain: A Social History [2017], available at

https://www.ncbi.nlm.nih.gov/books/NBK513717/).

Over the many decades thereafter, our societal norms toward animals have

continued to change. As a simple example, in the 19th century, some animal welfare

activists “maligned the cat as a semiwild killer of cherished songbirds” (Davis, History of

Animal Protection, supra). By the 20th century, however, medical advances and

inventions like the litter box brought cats out of the shrubbery and into the home (id.). The

animal protection movement became focused on dogs, cats, and sheltering animals (id.),

and today, cats are beloved by many in our society (see Roberto A. Ferdman & Christopher

Ingraham, Where Cats Are More Popular Than Dogs in the U.S.—And All Over the World,

Wash Post [July 28, 2014],

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https://www.washingtonpost.com/news/wonk/wp/2014/07/28/where-cats-are-more-

popular-than-dogs-in-the-u-s-and-all-over-the-world/). Indeed, domesticated pets have

become important members of families, and the law has accounted for the role they play

in people’s lives. A recent New York law, for example, requires that a court managing a

couple’s separation, “in awarding the possession of a companion animal . . . consider the

best interest of such animal” (Domestic Relations Law § 236 [d] [5]). In many states,

people can leave behind money for their pets or domesticated animals in trusts after they

die (see, e.g., New York Estates Power and Trusts Law § 7-8.1; Uniform Probate Code § 2-

907 [b]; Breahn Vokolek, America Gets What It Wants: Pet Trusts and a Future for Its

Companion Animals, 76 UKMC L Rev 1109, 1126-1128 [2008]).

Driving many of the changing social norms about wild animals is our vastly

enhanced understanding of their cognitive abilities, needs and suffering when in captivity.

Prior to the 20th century, human understanding of animal intelligence was minimal.

Rather, humans regarded themselves as “unique in their sociality, individuality, and

intelligence” (Piers Locke, Explorations in Ethnoelephantology: Social, Historical, and

Ecological Intersections between Asian Elephants and Humans, 4 Envt & Socy 79, 79

[2013]). As scientific research progressed in the 20th century, researchers began to

discredit the notion of human exceptionalism. Scientists found that animals such as apes,

dolphins and elephants—like humans—had substantial capacity to engage in and maintain

social relationships, to learn and transpose information, to “appreciate the thoughts and

feelings of other sentient beings, and engage in strategic behavior” (id.). Because human

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understanding of the cognitive and emotional capacities of animals has developed recently

and is still expanding, the contrast between what we now know and the paucity of

information in earlier times must inform our analysis. What was unknown about animal

cognizance and sentience a century ago is particularly relevant to whether Happy should

be able to test her confinement by way of habeas corpus, because we now have information

suggesting that her confinement may be cruel and unsuited to her well-being.

Philosophers have long debated the roles and capacities of animals in human

society. French philosopher Michel de Montaigne contended that animals were conscious,

rational, and moral—even more so than humans (Peter Harrison, The Virtues of Animals in

Seventeenth-Century Thought, 59 J History of Ideas 463, 463 [1998]). Descartes posited

the contrary; animals were not conscious, rational, or moral (id.). Nicolas Malebranche, a

17th-century French philosopher, described Descartes’s understanding of animals: “[i]n

animals there is neither intelligence nor souls as ordinarily meant. They eat without

pleasure, cry without pain, grow without knowing it, desire nothing, fear nothing, and know

nothing” (Steven Nadler, The Cambridge Companion to Malebranche 42 [2000]).

Descartes’s dogmatic belief that animals were insentient, unfeeling beings was not

ubiquitously accepted. Rather, theories of the virtues and capabilities of animals varied

significantly prior to the 20th century (Harrison, supra, at 471). Some accepted

Montaigne’s expansive view of animal consciousness, and others rejected it, instead

following Descartes’s views (id.). Some found a middle ground that reflected Aristotle’s

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view: animals were conscious and sentient but had no rational soul (id.). None of those

views were firmly grounded in anything we would describe as the scientific method.

Today, human understanding of the cognitive and emotional makeup of animals is

meaningful and sound, though surely incomplete. The panoply of undiscovered

information and broad scope of recent findings support approaching the question of animal

sentience, feeling and confinement with humility and deference to the unknown. Indeed,

“it is always advisable to perceive clearly our ignorance” (Charles Darwin, The Expression

of the Emotions in Man and Animals 66 [1872]). The past century has given rise to

substantial developments in the scientific understanding of animals, suggesting also that

there remains much that we still do not know.

As to elephants in particular, in 1957, scientists at a zoo in Germany conducted

several experiments to determine the mental capabilities of elephants (B. Rensch, The

Intelligence of Elephants, Scientific American 196(2), 47 [1957]). The researchers found

that elephants were able to recognize visual and auditory patterns, associate symbols with

rewards and detriments and anticipate consequences of their actions (id. at 47-48). Even

when patterns were altered, elephants were nonetheless able to recognize them. That

behavior, researchers noted, demonstrated elephants’ ability to “transpose learning or form

an abstract concept” (id.). Elephants’ substantial mental capacity was similarly

demonstrated by researchers’ discoveries regarding elephant memory. Researchers found

that elephants were able to remember distinctions between various sounds or visual

patterns one year after they had initially learned them (id. at 48). The research established

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that elephants bear very substantial mental cognizance; they can “anticipat[e] what will

come of certain actions” and have the capacity for “true ideation” (id. at 47).

Beyond the ability to recognize and respond to patterns, elephants have exhibited

complex social behaviors and have substantial ability to engage in and maintain social

relationships (George Wittemyer, The Global Guide to Animal Protection: Perceptions of

Elephants 90 [2013]). Studies have shown that elephant families are headed by matriarchs,

who “lead[] their families through a vast social network where relations and dominance

have been worked out among hundreds of individuals” (id.). Other research has detailed

elephants’ abilities to develop meaningful social and familial bonds (id.). Elephant

mothers whose calves perish will often mourn their loss for days, attempt to revive the dead

and stand guard over the body for days at a time (id.). Elephants’ ritualistic funeral

practices further offer support for the notion that they are mentally and socially complex

beings: when a member of an elephant family dies, elephants have been seen gathering

around the deceased, smelling, moving and interacting with the deceased’s bones (id.). The

motivation behind elephant funeral practices remains unknown (though a visitor from

another planet might say the same about human funeral practices) and is representative of

the incompleteness of human knowledge regarding animal behavior.

Human understandings of elephant cognition are continuously developing and

therefore are far from absolute. Just a decade ago, scientists learned that elephants had the

ability to engage in “insightful problem solving” because they demonstrated substantial

capability to use tools (Preston Foerder et al., Insightful Problem Solving in an Asian

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Elephant, PLoS One 6(8), 5 [2011]). Fewer than 20 years ago, scientists determined that

elephants were likely self-aware because they were able to recognize themselves in a

mirror. Happy herself was a subject of that experiment. She exhibited behavior consistent

with mirror self-recognition—an ability that remains “exceedingly rare in the animal

kingdom” (Joshua M. Plotnik et al., Self-Recognition in an Asian Elephant, PNAS 103(45),

17053 [2006]).

Today, we would roundly reject Descartes’s claim that animals “cry without

pain . . . desire nothing, fear nothing and know nothing.” Indeed, it is the advancing state

of our knowledge that has led us to provide rights to animals. The idea of a habeas petition

on behalf of an elephant would have seemed ludicrous to Descartes, who saw animals as

inanimate, insentient objects. Given what we know today, it would be even more absurd

to allow Descartes’s views to factor into a decision concerning Happy’s ability to seek

relief through habeas corpus, when human understanding of elephant cognition, social

behavior, capabilities and needs demonstrates the absurdity of those ancient, uninformed

views. Due to our greater understanding of animals, we have also increasingly recognized

that harms to animals outweigh the benefits to humans from various forms of animal uses

and confinements once commonplace. The Zoo itself has decided that it will not acquire

any elephants in the future, so that Happy will be one of the last elephants to inhabit the

Zoo (Tracy Tullis, The Bronx Zoo’s Loneliest Elephant, NY Times [June 26, 2015],

https://www.nytimes.com/2015/06/28/nyregion/the-bronx-zoos-lonliest-elephant.html]).

In 2015, the Ringling Brothers Barnum & Bailey Circus announced it would cease using

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elephants in its acts by 2018 (Richard Pérez-Peňa, Elephants to Retire From Ringling

Brothers Stage, NY Times [Mar. 5 2015],

https://www.nytimes.com/2015/03/06/us/ringling-brothers-circus-dropping-elephants-

from-act.html). The circus shut its operations entirely in 2017, and just about a month ago

announced that it would return, but with no animals whatsoever as part of the show (Sarah

Maslin Nir, Ringling Circus Is Returning. Lions, Tigers and Dumbo Are Not, NY Times

[May 18, 2022], https://www.nytimes.com/2022/05/18/arts/ringling-circus-

returning.html). Even if the circus made its decision because potential customers think it

cruel to see an elephant doing tricks, the views of those potential customers are shaped by

a better understanding of elephants. The law has reflected those evolving social norms.

Today, a pediatrician who suspects that a child has been abused must report her suspicion;

a veterinarian who suspects that an animal has been abused must do the same; and the

abusers of either are subject to criminal prosecution.

The question presented by Happy’s case—whether she should be able to challenge

the conditions of her confinement through a writ of habeas corpus—arises within our

country’s history of evolving norms and knowledge about animals. Those evolving norms

and our deepening understanding about animals, along with legal developments that reflect

them, provide the essential context for deciding this case.

B

As the Zoo’s treatment of Mr. Benga illustrates, however, comparisons between

animals and enslaved and non-white people have been used perniciously. Those

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comparisons have occurred in at least two ways: first, non-white and enslaved people were

directly equated with animals in ways that justified oppression or enslavement, and second,

animal rights advocates have likened animal captivity to human enslavement and the

violence of colonization in ways that, intentionally or not, further dehumanize non-white

and indigenous people. The first comparison shocks our conscience today. The second

comparison trivializes the particular, acute and morally destitute nature of human slavery,

distracting from more nuanced and helpful reflections on the insight that slavery and

colonization may have for other kinds of subordination.

Any discussion of slavery in the context of animal rights demands an

acknowledgment of our country’s reprehensible history of denying the humanity of racial

minorities. I opened with a small fragment of the outrageous story of Mr. Benga, whom

the Zoo placed on display in a cage with an orangutan (see Pamela Newkirk, Spectacle:

The Astonishing Life of Ota Benga 26 [2015]). Mr. Benga’s confinement, which should

enrage us today, was welcomed as an opportunity for visitors to see a Black man deemed

less human than the gawking white visitors, at least some of whom felt uneasy with the

display (id. at 9). When Mr. Benga was first exhibited, at the 1904 St. Louis World’s Fair

along with other people from his part of the Congo, the Fair also included a miniature

village filled with people from the Philippines, whom newspapers of the day described as

“savages” comparable to monkeys (see Wash Post, How a Monkey Got In: Was Mistaken

for One of the Igorrote Babies, May 2, 1904 at 5; Henry Grady, Philippine Village—

Startling Exhibit at Fair: Igorrotes in Native Attire, Celebrate Holidays by Diet of Dog

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Meat; Strange Customs and Queer Practices, Atlanta Constitution [July 3, 1904], at B5).

That historical practice of equating non-white people to animals was pervasive. Indeed,

the practice—termed “animalization” by some—was used to justify the slavery of Africans

and people of African descent and avoid any emotional empathy white society might feel

for the people whose liberty it stole (see Luis C. Rodrigues, White Normativity, Animal

Advocacy, and PETA’s Campaigns, 20 Ethnicities 71, 77 [2020]).

Advocacy by organizations pushing for animal rights has at times drawn

comparisons to human slavery that exacerbate the “animalization” of non-white people. In

2005, the People for the Ethical Treatment of Animals (PETA) ended a campaign due to

criticism of its alleged comparisons between the treatment of enslaved Black people and

animals (Angela Harris, Should People of Color Support Animal Rights?, 5 J Animal L 15,

18-19 [2009]). The campaign provoked a response from the NAACP, which inquired, “Is

PETA saying that as long as animals are butchered for meat, racists should continue

lynching Black p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6349491. Public record. Not legal advice.