BACKGROUND: ORGANIZATIONS LAWS

To some extent, Haines’ original narrative was correct: in the 40 years preceding his comments animal protectionists in the United States had secured positive laws in every state to criminalize cruelty to animals The organized movement for the protection of animals from cruelty in the United States began in 1866 when a wealthy citizen of New York City, Henry Bergh secured a charter from the state of New York to form the ASPCA Shortly thereafter Bergh went before his state’s legislature and successfully convinced the body to pass a bill that both criminalized cruelty to animals and deputized Bergh’s society to enforce the provisions of the law Bergh’s organization and his law became a model and SPCAs rapidly spread across the country By 1900, every state in the nation had enacted laws similar to those in New York and over 300 SPCAs had been formed in towns and cities across the nation.¹

As Haines’s retrospective comments suggest, these early anticruelty activists were not merely moral suasionists - they endeavored to pass and enforce laws that would protect animals by mitigating their suffering Their first task was to legally encode animals as ‘‘more than mere property” (Addresses on Vivisection by Members of the Medical Profession (1886) p.

In spite of their designated role as mankind’s subordinates animals like other forms of real and personal property were subject to a variety of protections and regulations³ Common law did offer animals what Bishop called ‘‘indirect’’ protections It was for instance a crime to injure or kill a domestic animal belonging to another The crime however was a form of malicious mischief a vengeful destruction of property and the harm was understood as directed against the animal’s owner not the animal itself Interpreting violence toward animals as a form of malicious mischief was to return to John Haines’s terms an example of equating a cow with a plow Moreover since malicious mischief was a violation of property rights this indirect protection of animals left a man free to harm or kill his own animals as much as he liked - for they were his possessions In another form of indirect protection the common law also held that it was a crime to beat an animal in public but as with malicious mischief the crime was not against the animal, but instead against the public peace and the public morals It was a crime of nuisance an offence against one’s neighbors and the social order In both the instances neither the welfare of animals nor the concept of cruelty guided the law’s sense of criminal harm and criminal culpability Under such nuisance and mischief penalties explained Bishop ‘‘protection to the creature as a sensitive being is not the thing sought” (1892, p.

Prior to Henry Bergh’s 1866 legislation several states including New York had some positive law provisions regulating the treatment of animals. As early as 1641 the Massachusetts Bay Colony’s legal code the Body of Liberties had prohibited beating certain kinds of animals In the 1820s, Maine outlawed beating cattle or horses New York banned maliciously killing another’s livestock or maliciously beating one’s own and in the 1850s Minnesota Connecticut, and Vermont made it a crime to kill livestock belonging to another person (Curnutt, 2001) None of these extant laws, however were truly anticruelty laws Rather they were akin to the common law crimes of malicious mischief and public nuisance and chiefly concerned with property in animals and the public peace Describing this history a Scribner's feature on Henry Bergh and the ASPCA recounted that ‘‘up to 1865 no law for the protection of animals from cruelty could be found on the statute book of any state in the Union The common law regarded animals simply as property and their masters in wanton cruelty or anger might torture his sentient chattels without legal hindrance or accountability” (Henry Bergh and His Work 1879, p. 879).

The innovation of the New York state and subsequent anticruelty laws stated that by isolating cruelty as the chief harm to be prevented and pun­ished they made the crime consist more clearly of violence against animals themselves rather than the violation of property rights or disruption of the public order Crucially anticruelty laws were written such that cruelty was an offense no matter what the relationship of ownership between man and animal - it could be perpetrated against ‘‘any living creature’’ and it was an offense whether it took place in the public square or in a private home Another distinctive feature of the new anticruelty laws was that they sanc­tioned not just positive acts of violence against animals but also various kinds of neglect Consistent with its concern for the public peace common law had regulated the keeping of animals expecting their owners to keep control of them and making owners liable for animals’ mischievous behavior such as stealing food or injuring humans (Negligent Keeping of Animals, 1883; Bevern 1909) As with the prohibition on positive acts of cruelty to animals the neglect provisions of post-1866 anticruelty laws were quite different from such common law assumptions and requirements Instead of protecting the public from bothersome animals not well kept the anticruelty concept of neglect entitled animals to sustenance protecting them from their owners or caretakers On the whole the new anticruelty laws implied that animals had a specific identifiable interest in being free from pain whether it resulted from the sharp sting of a blow or the pro­tracted agony of starvation Moreover by removing property relations from the equation anticruelty laws constituted guilt as harm to animals not their owners

Not long confined to New York the spread of this new form of legis­lation and this new conception of the relationship governing man and animal, was rapid By 1900, all 47 states had similar positive legislation on their books Nineteenth century jurists and legal scholars immediately detected the near-revolutionary character of these new laws Writing in the Central Law Journal, Oscar Quinlan (1894) for instance note) ‘‘cruelty, as such is punishable only by virtue of recent legislation” and was not indictable at common law ‘‘This prohibition of cruelty” he went on ‘‘is superior to the rights of ownership and regardless of value of the animal injured and of the privacy or publicity of the act” (p 161)4 Similarly, Bishop insisted that there was no common law basis for the crime of cruelty and that it was a pure product of the 19th century state (Bishop 187) 1873, 1892) an attempt, as one Arkansas judge put it, ‘‘to transcend what had been thought, at common law the practical limits of municipal govern­ment” (Grise v.

Contended to see themselves as revolutionaries on the side of right, animal protection activists themselves generally heralded the ground­breaking nature of state anticruelty legislation Charles Barnard (1888) an attorney for the Massachusetts SPCA, declared that the new laws ‘‘differ from earlier enactments and from the common law regarding this class of offences in proceeding more clearly upon the principle that animals have rights” (p 10) by which he meant that the law was concerned principally with animal suffering rather than with the protection of property or the public order The point of anticruelty laws differed from the indirect pro­tections of the common law While the latter sought to protect property and preserve human morality and order the former aimed to protect animals from undue suffering The common law definition of guilt or harm was in other words amended by 19th century SPCAs that sought to replace the old sense of harm - the destruction of property - with a new harm - the suf­fering of animals themselves Although such laws served as the foundation for emphasizing animal sentience and suffering as the basis of determining a new kind of human guilt, in this new paradigm neither animal suffering nor human guilt were easy to determine