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Overview of the Historical Materials

David Favre


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Publish Date:
September 2002
Place of Publication: Animal Law Web Center
Printable Version

Overview of the Historical Materials

A. U.S. History:

While throughout the ages individual humans must have had great sympathy with individual animals, it was not until the last half of the 19th Century that the US legal system began to be reflect concern for the welfare of animals. (The British did get a slight head start on the US with the passage of law in the early 1800's.[Details]) Concern for the well being of animals cumulated in a political movement which pushed for the passage of a new set of laws at the state level, referred to as anti-cruelty laws. Leadership in this area was found in the State of New York, and within New York the efforts of one man, Henry Bergh, dominated the scene. He obtained a state charter for the American Society for the Prevention of Cruelty to Animals (1866), had drafted the New York laws of 1866 and 1867, and then walked the streets of New York enforcing the law.

The New York law of 1867 created a pattern which other states would follow for the next century. The latter half of the century saw new SPCA’s come into being across the United States. The New York laws also spread across the land. [Details] After the passage of this new type of law, which was concerned with the well being of the animal and not just the property interest of the owner of the animal, the various state courts had to come to terms with this new legislation and the case opinions of that time created the legal analytical framework for the next century. A number of vexing issues were considered in these cases such as what is cruelty, must the acts be intentional, what defenses are available.

The material in this portion of the Animal Law and Historical Center are of two categories: law and social change. The development of the law is set out in detail in the law review article, Favre & Tsang, The Development of Anti-Cruelty Laws During the 1800's

Three of the initial New York cases are also included to give a flavor of the judicial temperament:

For insight as to the working of the social movement represented by humane associations, two complete annual reports of the ASPCA are provided and indexed for easy access. 1889 & 1902 Annual Report of ASPCA

A window into the broader context of the period is provided through one volume of Our Dumb Animals. (Dumb was being used in the context of not being able to speak for themselves.) This monthly magazine was produced by the Massachusetts Society for the Prevent of Cruelty to Animals. It contains a diversity of items and formats which today’s reader may find quaint and almost child-like in humor and outlook.

Our Dumb Animals, Vol. 20 (1887)

Finally, one article is provided which seeks to explore the character of the key figure of the time: Clara Morris, Riddle of the Nineteenth Century: Mr. Henry Bergh.,18 McClure 414 (1902)

Table of Historical Anti-cruelty Statues.

 

Historical Books available from the Web Bookstore

 

Animal Rights by Henry S. Salt (1894)

http://www.animallaw.info/index.asp?PageAction=VIEWPROD&ProdID=9

 

The Law Concerning Game by William Nelson (1753)

http://www.animallaw.info/index.asp?PageAction=VIEWCATS&Category=210

 

The Law relating to Dogs by Frederick Lupton (1888)

http://www.animallaw.info/index.asp?PageAction=VIEWPROD&ProdID=10

 

 

B. British History

The development of legal concepts in the United States has long roots into the common law system of Britain.

William Nelson's, Laws Concerning Game, gives the earliest history.

Bacon's, "Game"   gives the laws as of 1850's

The oldest private organization with a full focus on animal cruelty issues is the Royal Society for the Prevention of Cruelty to Animals. - for brief history up to World War II - see article

Detailed Notes:

I. The British Set the Stage

Notwithstanding the political independence that the United States obtained from Great Britain during the late 1700's and 1800's, there was still a considerable transfer of ideas from the intellectually mature mother country to the newly formed and basically frontier United States. The first articulations of concern for the moral and legal status of animals appeared in British writing. Reverend Humphrey Primatt in, A Dissertation on the Duty of Mercy and Sin of Cruelty to Brute Animals, written in 1776, pleaded for the care of animals.

"See that no brute of any kind . . . whether intrusted to thy care, or coming in thy way, suffer thy neglect or abuse. Let no views of profit, no compliance with custom, and no fear of ridicule of the world, ever tempt thee to the least act of cruelty or injustice to any creature whatsoever. But let this be your invariable rule, everywhere, and at all times, to do unto others as, in their condition, you would be done unto."

Jeremy Bentham, an English barrister, was one of the few legal writers who addressed the issue of animals and the legal system. His Introduction to the Principles of Morals and Legislation was closely studied at the time by a large number of individuals, some of whom went on to propose legislation for the protection of animals. Bentham argued that there was no reason why animals should not be accorded protection under the law. Bentham pointed out that animals, "on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things." Within a footnote entitled "Interests of the inferior animals improperly neglected in legislation," Bentham argued that the capacity for suffering is the vital characteristic that gives a being the right to legal consideration. The final sentence of the footnote is often used today as a rallying cry for those seeking to promote the cause of animal rights. "The question is not, Can they reason? nor, Can they talk? but Can they suffer."

Having made the intellectual arguments for concern about animals, the British followed up with changes to the legal system. On May 15, 1809, Lord Erskine addressed Parliament in support of the bill he had introduced for the protection of animals. This date may represent the first time animal protection was seriously debated by a full legislative body. In his address, Lord Erskine stated:

"They (animals) are created, indeed, for our use, but not for our abuse. Their freedom and enjoyment, when they cease to be consistent with our just dominions and enjoyment, can be no part of their natures; but whilst they are consistent I say their rights, subservient as they are, ought to be as sacred as our own . . . the bill I propose to you, if it shall receive the sanction of Parliament, will not only be an honor to the country, but an era in the history of the world."

The bill passed the House of Lords, but was defeated in the House of Commons.

Some thirteen years later the battle was taken up again, this time by Richard Martin. On June 10, 1822, he succeeded in obtaining passage of a law known as "Dick Martin's Act . . . An Act to Prevent the Cruel and Improper Treatment of Cattle." As compromise was necessary for its passage, it was a limited first step. It was made illegal for any person to "wantonly and cruelly beat or ill-treat [] [any] horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep or other cattle . . . ." The law imposed a "fine of not more than five pounds or less than ten shillings, or imprisonment not exceeding three months." It was during this period of time that an organization was formed in London that would become the Royal Society for the Protection of Animals and be an inspiration for Henry Bergh.

II B. The Ripple Effect

While the New York law would not have happened but for the energy and drive of Henry Bergh, his actions clearly struck a responsive cord in a number of individuals around the country. Evidence of the societal readiness for animal protection legislation is found in the rapid adoption of the legislation and the creation of animal protection societies around the country. Bergh was the catalyst, but the actions in many other states required the work and support of others outside the political power and influence of Bergh. Besides the drafting of the laws, Bergh's other major contribution was the generation of publicity about the issues. Because of the force of his personality and the visible way in which he ran his campaigns against animal cruelty, he was able to generate a large volume of newspaper coverage, first in New York and then around the country.

Within a few years Massachusetts,(91) Pennsylvania,(92) Illinois,(93) New Hampshire,(94) and New Jersey(95) had adopted the same pattern of legislation as that in New York with both new criminal laws and the chartered creations of state Societies for the Prevention of Cruelty to Animals ("S.P.C.A.").(96) One exception to the pattern is Maryland which did not adopt any statute until 1890 and then adopted a very short provision clearly not based on New York's statute.(97) One legally significant addition to the New York model was a clause used by a number of states which imposed a specific duty on the owner or keeper of an animal and required that the animal be provided with appropriate shelter or protection from the weather.(98) Also, these statutes tended to use slightly different terminology. While the New York statute consistently referred to "any living creature" other states would use the term "animal" and then would go on to define the term "animal" to include "all brute creatures."(99) Levels of punishment also varied between the states. While New Hampshire and Massachusetts both provided penalties of up to one year in jail and $250 fine, Michigan provided a maximum of three months in jail and a $100 fine,(100)Illinois had no jail time and a fine of $50 to $100(101) and Nebraska, whose law protected only domestic animals, had a fine of $5 to $50.(102)

Apparently, the legislation was lost on the wagon trains heading for California. It did not adopt any legislation until 1872 when the California Legislature adopted a law similar to the 1829 New York legislation.(103) It was not until 1900 that California passed the more comprehensive legislation adopted thirty years earlier in New York.(104)

 

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