Queen's Bench Division (Divisional Court)
Ford v. Wiley
United Kingdom: England & Wales
23 QBD 203
A farmer who had caused the horns of his cattle to be sawn off, a procedure which had caused great pain, was liable to conviction for cruelty. For an operation causing pain to be justifiable, it had to be carried out in pursuit of a legitimate aim that could not reasonably be attained through less painful means, and the pain inflicted had to be proportionate to the objective sought. The mere fact that the defendant believed that the procedure was necessary did not remove him from liability to conviction if, judged according to the circumstances that he believed to exist, his actions were not objectively justifiable.
Opinion of the Court:
Lord Coleridge, CJ:
Having had the advantage of reading what my learned brother Hawkins has written upon this case, with the whole of which, both in substance and in expression, I entirely concur, and to which I refer for a statement of the facts, I should not have written anything myself, but for the importance of the case and the fact that we appear, perhaps more than appear, to be differing from several authorities greatly to be respected by any judge sitting in this place.
The charge is one under 12 & 13 Vict. c. 92, s. 2. The important words of which are "cruelly abuse or torture," or "cause or procure to be cruelly abused or tortured," and the question is whether the evidence in this case does not make out to demonstration that an offence against the Act has been committed, and that the magistrates should have convicted instead of acquitting the respondent. The question submitted to the Court is, and to this I call particular attention, whether the operation of dishorning cattle, as proved to have been performed in this case, is justifiable under s. 2 of 12 & 13 Vict. c. 92?
Now it is important to settle in one's mind, so far as it can be settled, clearly what is cruelty, and what is cruelly to abuse or torture an animal within the meaning of the statute. The mere infliction of pain, even if extreme pain, is manifestly not by itself sufficient. Men constantly inflict great pain on one another and upon the brute creation, either for reasons of beneficence, as in surgery and medicine, or under sanctions which warrant its infliction, as in war or in punishment. It is further lawful to inflict it if it is reasonably necessary; a phrase vague, no doubt, but with which in many branches of the law every lawyer is familiar. This involves the consideration of what "necessary," and "necessity" mean in this regard. It is difficult to define these words from the positive side, but we may perhaps approach a definition from the negative. There is no necessity and it is not necessary to sell beasts for 40s. more than could otherwise be obtained for them; nor to pack away a few more beasts in a farm yard, or a railway truck, than could otherwise be packed; nor to prevent a rare and occasional accident from one unruly or mischievous beast injuring others. These things may be convenient or profitable to the owners of cattle, but they cannot with any show of reason be called necessary. That without which an animal cannot attain its full development or be fitted for its ordinary use may fairly come within the term "necessary," and if it is something to be done to the animal it may fairly and properly be done. What is necessary therefore within these limits, I should be of opinion may be done even though it causes pain; but only such pain as is reasonably necessary to effect the result.
Necessary pain, therefore, thus limited, we may fairly inflict on those animals over which we have been given or have assumed dominion. But I adopt the language of Mr. Justice Wightman in Budge v. Parsons 3 B. & S. 382, at p. 385, as for the purposes of interpreting the statute complete and satisfactory, and his language is that "the cruelty intended by the statute is the unnecessary abuse of the animal." His language is approved of by the court of Exchequer in Murphy v. Manning 2 Ex. D. 307. I do not think that the definition given by Grove, J., in Swan v. Saunders 14 Cox, C. C. 566, at p. 570, "unnecessary ill-usage by which the animal substantially suffers," though longer, adds anything to the terser language of Wightman, J. Abuse of the animal means substantial pain inflicted upon it, and unnecessary means that it is inflicted without necessity, and under the word "necessity," as I have already said, I should include adequate and reasonable object.
Applying these observations to the evidence in this case, there can be no difficulty in arriving at a determination. In the first place as to necessity, it is found in the case that for twenty years the practice of dishorning has been entirely disused throughout England and Wales. It has not been thought necessary in all that time to perform it on any of the millions of cattle which during that time the farmers of England of all sorts have reared, and sold, or eaten. We learn further from a case of Renton v. Wilson 15 Justiciary Cases, 84 (Scotch), that except in three counties, Fife, Forfar, and Kincardine, it is unknown in Scotland. It appears that in Ireland it is more common. It is incredible to me, at least, that an operation for many years discontinued in England and Wales, and, with the above exception, in Scotland also, should suddenly have become "necessary" so as to except it, if it be cruel, from the mischiefs against which the statute is directed. It was not unknown, but it has been discontinued. In the evidence before us no ground for it is suggested, except that the animals generally after dishorning sell for more money, that more of them can be packed into a farm yard or a railway truck, and that dishorned animals cannot gore, but can only butt their fellows.
What, however, is the evidence as to the practice which the magistrates of Norfolk have sanctioned and which we are asked to countenance? It is utterly disgusting, but in the interests of common humanity it must be read. It must be read also, because I cannot, nay, I do not believe that evidence so full, so uncontradicted, so detestably brutal in its details could have been given in the cases of Renton v. Wilson 15 Justiciary Cases, 84 (Scotch) in Scotland and in Callaghan v. Society for Prevention of Cruelty to Animals 16 L. R. (Ir.) 325 in Ireland, cases which no doubt appear to be inconsistent with the judgment we are pronouncing.
The appellant said, "These animals were dishorned on October 15. The animals had no horns on their heads and seemed to be in great pain. There was a discharge coming out of cavities on the top of the heads of two of these cattle, which was flowing down their cheeks. This discharge was pus. The horn on one of these animals had not been sawn off. Some of the horns were more clumsily sawn off than others; all of the horns were sawn off as close to the head as a flat saw could be made to do it. There was an opening on the top of the heads of some of the cattle large enough for the admission of the thumb; on the heads of others there was a depression like what mechanics would call countersinking. The surrounding parts were very tender, and the animals flinched when they were touched even lightly. The respondent entered freely into conversation with him on the subject, and said the operation added to the value of the cattle when he sold them to the extent of about 30s. to 2l. The respondent shewed the appellant sixteen other cattle which had been dishorned on October 8, three of which were sloughing and pus running down their cheeks, although these had been operated on twenty-five days. The respondent said he was present a part of the time when the animals were dishorned, and he described the process to the appellant. He said the beasts were placed between two waggons one at a time, a plank being put behind the animal so that it could not run back. The plank was secured to two stout oaken posts between which its head was fixed as in a vice. Two of his men held the animal's head, whilst a third sawed the horns off with a common saw. The appellant said that he saw a good deal of blood upon the posts to which the cattle were tied, and blood also at the entrance to the cattle shed, where they were driven in after being operated upon, and blood all along the passage, and the door and the posts inside the shed were smeared all over with blood, while on the walls higher than he could reach there were marks of blood as if made by a syringe which had spouted out from the animals. I pointed out these marks to the respondent, who said, 'The bullocks generally bleed five or six minutes after they get in here, and the blood flows from the horns every time the heart beats.' I asked a man named Feek, employed by the respondent on the occasion, 'Did the animals make much noise during the operation?' and Feek said, 'I should think they did; you might have heard them a mile off. I told Mr. Wiley I would not do it again.' Feek said, 'I will never do it again. I was covered with blood, and so were all the others. I don't want any more of it, I can tell you; one of them got down and we had to saw the horn off lying down.'"
Frederick Booty Last, sworn, deposed:- He was a veterinary surgeon, and had been in practice in the county of Norfolk for thirty-five years, and during that time his practice had been amongst cattle. He was with the last witness during the visit to respondent's farm. He saw thirty-two beasts two years old, six of which were discharging pus from their horn cavities, and were suffering much pain. They were sick and looked shrunken. They had been dishorned close to their heads. Some of the horns had been taken off clumsily. Some were sawn right into the base of the skull. The age of two years was a bad age for the operation to be performed, because there is more flesh and consequently more vascular tissue round the base of the horn at that time than previously. The operation was most cruel. Until recently it had not been practised in the county for thirty years. He had been all his life attending on cattle, but had never seen the necessity for dishorning. If 2 inches or 21/2 inches were taken off the tips of the horns of a butting beast, just to touch the quick and no more, it would prevent "butting." He had never known a case in which this method had been tried without curing the animal of "butting." The operation was not beneficial to the animals, but it enabled the owner to realize one or two pounds more for them when sold. The coarser the breed of animals the coarser are its horns, and by removing its horns the natural coarseness of the animals was concealed from the buyer. Cattle artificially polled could be sold for naturally polled cattle in some cases, but dealers could not be deceived. No benefit to the animal whatever was derived from the operation, but the dealer profited, and the farmer could stow a larger number of animals in his yard. The operation did not improve the quality of the meat, in fact, it gave no advantage to the public nor to the animal, but only to the owner.
Then important evidence was given as to the operation:-
Professor Walley, sworn, said: He had been principal of the Royal (Dicks) Veterinary College, Edinburgh, many years, and had made the dishorning of cattle a special study for fourteen years. He produced a section of the horn. He described the membranes and structure of the horn and said .... "Under inflammation the membrane becomes exceedingly sensitive, and thickened granulations (proud flesh) form upon it and during the continuance of the inflammation much pain and suffering is caused. ..." Then he says, "Every tooth of the saw as it tears through the structure causes excruciating pain and the inflammation following the operation causes great and prolonged suffering. Cutting through the sinus is excessively painful and very cruel. The pain would be excruciating at the time and would be continued more or less for a fortnight and probably longer. Inflammation would ensue and then pus would be discharged. The pain was caused by cutting the sensitive tissues like cutting through the quick of a man's finger, and thus intense suffering is inevitable when the horn is cut close to the skin. The tips of the horns could be removed without causing inflammation. That operation was called 'tipping' and was resorted to to prevent butting. He had never known a case of tipping to fail as a remedy for butting during his long experience in Scotland." At the English National Congress of Veterinary Surgeons assembled at Peterborough, resolutions were passed condemnatory of the practice of dishorning, except when performed as a surgical operation for the benefit of the animal.
Professor McColl, many years Principal of the Glasgow Veterinary College, sworn, said:- "I entirely endorse the evidence against dishorning given by Professor Walley. It causes extreme torture at the time and afterwards for several days. It does not benefit the animal. It was gross cruelty to remove the whole of the horn. Suppuration is a sign of pain, for then there is inflammation."
Professor Collins, sworn, said: "He was a Fellow of the Royal College of Veterinary Surgeons. Had been in practice thirty-five years, and had studied the subject while in the service of the government, and since during his practice of 71/2 years in Ireland where he had much cattle practice." He says that in Ireland, the horns are taken off chiefly to "conceal their age and to get more money for them."
Mr. George Andrews Leper, a Fellow of the Royal College of Veterinary Surgeons, "agreed with the previous witnesses that dishorning was a cruel practice causing fearful pain and absolutely unnecessary."
Professor William Pritchard, President of the Royal College of Veterinary Surgeons in London, many years Professor at the College at Camden Town, "entirely agreed with the evidence which had been given that the operation of dishorning caused extreme pain, and that it was unnecessary."
Similar testimony was given by six or seven other eminent men, all of them disconnected with the case; some coming from Scotland and others from different parts of England, cattle doctors, not sentimentalists but men of the world, men of sense, men dealing with scientific matters in a scientific way.
Then comes the evidence on the other side.
Mr. Sapwell, a landowner and farmer in Norfolk, says "that he does not deny that the animals suffered great pain;" and Mr. Clare Sewell Read, says the operation was bound to cause very severe pain indeed, but he had never seen it done. The rest of the witnesses for the respondent say that the operation makes the animals of more value; that without it it is not possible to stow thirteen bullocks in a yard twenty-five yards square, which is of course perfectly true: "It is cruel first and kind afterwards; butchers pay more for polled than for horned beasts."
Now against this there was absolutely no evidence of fact except that beasts in Norfolk gore and injure their fellows apparently to an altogether abnormal extent. All through England and Wales, north and south, east and west, except in Norfolk we see cattle grazing in the fields or standing in farmyards and grazing or feeding armed or ornamented with their horns apparently in perfect peace and safety. The evidence, such as it is, is directed not so much to deny the horrible suffering occasioned by the operation, but to justify it on the grounds that I have stated. I do not doubt that dishorned beasts sell for rather more, that the same space will contain more cattle dishorned than horned, that the practice disguises the breed to a superficial or unskilled observer, and deceives, or may deceive, the butcher. But I emphatically deny that any or all of these reasons are reasons of necessity or justify the operation. Necessity to form an excuse under the statute does not mean, as I have explained, simply that the effect of an operation cannot be otherwise secured. There must be proportion between the object and the means. Mutilation of horses and bulls is necessary, and, if properly performed, undoubtedly lawful; because without it, in this country at least, the animals could not be kept at all. But to put thousands of cows and oxen to the hideous torments described in this evidence in order to put a few pounds into the pockets of their owners is an instance of such utter disproportion between means and object, as to render the practice as described here not only barbarous and inhuman, but I think clearly unlawful also. I am not afraid of the possible application of the principle to other practices which have not yet been attacked, but which may hereafter turn out to be prohibited by law. If the suffering inflicted is necessary, as I have tried to explain it, it may be inflicted; if not, it is "unnecessary abuse of the animal," and we have neither the moral nor the legal right to inflict it, a conclusion not of sentimentalism but of good sense.
It remains only to say a word as to the cases from which we appear to be differing. Budge v. Parsons 3 B. & S. 382, Murphy v. Manning 2 Ex. D. 307, and Brady v. McArgle 14 L. R. (Ir.) 174; 15 Cox, C. C. 516, are cases which I desire to follow and to rest upon as I agree entirely with the decisions and the reasons given for them. The last named case was decided by the Court of Exchequer in Ireland, consisting of Dowse, B., and Andrews, J., and I beg leave to refer to the able judgments delivered by those learned judges, expressly to that portion of Baron Dowse's, to be found in the latter part of p. 523, as expressing in better language than any I can use, what I desire to say upon the true test of cruelty under the statute. Of the Scotch case and the other Irish case to which I have already referred, I desire to say only this. For the Courts, and for the judges who composed the Courts which decided them, no English lawyer can feel anything but unfeigned respect. We have nob the evidence before them set out in detail, and I will not presume to say that if I had been in their place I might not arrive at the same conclusion which they did upon that evidence. But I take the freedom to doubt altogether whether if they had heard or read the evidence given before us, they could possibly have arrived at any other conclusion than that at which my learned Brother and I have arrived in this case. I cannot think that on this evidence Morris, L.C.J., would have thought "the pain inflicted to be very temporary" or "the object reasonable and adequate;" or that Lord Young in the Scotch Case (p. 89), would have said that the statute did not in such a case as this "interfere with the judgment of those who are pursuing their own affairs to the best of their judgment as the farmers of Forfar and Fife are doing here, however much they may be mistaken in the judgment of others." Upon the decision in Lewis v. Fermor 18 QBD 532 we are not called upon to observe. It is upon a different operation, and is open to different considerations. But if my brother Hawkins is right in the view which he has taken of the reasoning on that case, I desire to say that I concur in the observations he has made upon it, and I respectfully dissent from it. I concur also in the observations he has made on the brutalizing effect of such an operation performed regularly on thousands of cattle upon those who perform it.
For these reasons I am clearly of opinion that in this case the magistrates ought to have convicted, and the case must be remitted to them to do with it according to what we hold to be the law.
Mr Justice Hawkins:
In this case I should have been quite content to express my cordial concurrence in the judgment which my Lord has just pronounced, but the great importance of it to a large community makes me think I ought to express my independent views.
The appellant was the prosecutor of two informations against the respondent, charging him under 12 & 13 Vict. c. 92, s. 2, with having ill-treated, abused, and tortured thirty-two oxen in the month of October, 1888. These informations came on to be heard before five justices of the peace for the county of Norfolk - who dismissed them - subject to a case, wherein the sole question submitted for our consideration is, whether the operation of dishorning cattle, as described, is justifiable having regard to the statute above mentioned. Mr. Winch, for the respondent, has rightly asked us to consider and dispose of the case, not upon any narrow or technical grounds, but upon the broad question whether the practice of dishorning for the purposes stated in the case is lawful or not; so that our decision may be a guide to all who are interested in the subject. We have accordingly so considered it.
In my opinion the practice is illegal, and ought to be suppressed.
The 12 & 13 Vict. c. 92, if entitled, "An Act for the more effectual prevention of cruelty to animals." By s. 1 the previous Acts 5 & 6 Wm. 4, c. 59, and 7 Wm. 4, and 1 Vict. c. 66, relating to the same subject, are repealed. By s. 2, it is enacted "that if any person shall from and after the passing of this Act cruelly beat, ill-treat, over-drive, abuse, or torture, or cause or procure to be cruelly beaten, ill-treated, over-driven, abused, or tortured any animal," such offender shall be subject to such punishment as is prescribed by that statute.
In construing this section, I am of opinion that the word "cruelly" runs through and governs the whole sentence, and that to bring a person within the operation of that section he must be proved to have cruelly committed the act charged against him.
Now what is the meaning of the expression "cruelly"?
In Budge v. Parsons 3 B. & S. 382, at p. 385, Wightman, J., said, "the cruelty intended by the statute is the unnecessary abuse of the animal." In Swan v. Saunders 14 Cox, 570; S.C. 50 L. J. (M.C.) 67 Grove, J., says it means "unnecessary ill-usage by which the animal substantially suffers." In Webster's Dictionary it is defined to be "an act which causes extreme suffering without good reason."
To my mind it is immaterial for the purposes of the present case which of these definitions is adopted - either is sufficient to dispose of it.
To support a conviction then, two things must be proved - first, that pain or suffering has been inflicted in fact. Secondly, that it was inflicted cruelly, that is, without necessity, or, in other words, without good reason.
That the operation of dishorning, as described in the case, is accompanied by excruciating torture is beyond all question. Any one who could read that description and reflect for a moment upon the agony of the poor mutilated creatures without being painfully touched with commiseration must be devoid of all pity for the miseries and distresses of God's creations, and he who could willingly inflict such suffering, unless under direct necessity, must indeed be cruel in heart, and insensible to every dictate of humanity.
What amounts to a necessity or good reason for inflicting suffering upon animals protected by the statute is hardly capable of satisfactory definition - each case in which the question arises must depend upon a variety of circumstances; the amount of pain caused, the intensity and duration of the suffering, and the object sought to be attained, must, however, always be essential elements for consideration. To attain one object the infliction of more pain may be justified than would be ever tolerated to secure another.
It would be unreasonable to claim for domestic animals designed for man's use absolute immunity from all suffering at the hand of man; and it would not be contended by the strongest advocates of the cause of humanity that pain to some extent may not be reasonably inflicted with a view to save an animal's life, to cure it from sickness or injury, or to fit it to fulfil the part for which by common consent it is designed. In each case, however, the beneficial or useful end sought to be attained must be reasonably proportionate to the extent of the suffering caused, and in no case can substantial suffering be inflicted, unless necessity for its infliction can reasonably be said to exist. To save the life of an animal, to restore it to health when suffering from painful disorder, violent measures, causing much misery to it, may oftentimes be matter of necessity; a wounded or diseased limb, or an injured eye, may require surgical treatment inseparable from pain; these are illustrations of cases in which the pain caused is for the direct benefit of the animal itself. As an illustration of a class of cases in which some degree of apparent ill-treatment may be justified in fitting an animal for its legitimate use, I may point to a horse, which though designed for draught and riding purposes, is not in its natural untutored state so fitted. To prevent it from being unruly and unsafe, it requires to be broken, sometimes with a degree of severity, occasioning pain, which without such necessity would be utterly unjustifiable. But even in these cases the good to be attained must be reasonably proportionate to the suffering caused.
Castration of young horses, and of the male young of other animals intended for use or for food, is, we all know, largely practised for the purpose of rendering them more docile and less dangerous to use, and more adapted for food than uncastrated males commonly are, but I am far from saying that in my opinion castration, which is a painful operation, though not of long duration, is in all cases justifiable. I could, were it necessary to do so, suggest many circumstances in which in my judgment it would be utterly unreasonable because unnecessary.
Docking is another painful operation, which, no doubt, may occasionally be justified; but I hold a very strong opinion against allowing fashion, or the whim of an individual, or any number of individuals, to afford a justification for such painful mutilation and disfigurement.
I have said enough to indicate my views, namely, that the legality of a painful operation must be governed by the necessity for it, and even where a desirable and legitimate object is sought to be attained, the magnitude of the operation and the pain caused thereby must not so far outbalance the importance of the end as to make it clear to any reasonable person that it is preferable the object should be abandoned rather than that disproportionate suffering should be inflicted.
This brings me to the consideration of the reasons which are suggested on behalf of the respondent by way of justification for the revolting operation of dishorning.
Those reasons, shortly stated, are as follows:- That the operation makes the cattle graze better and fatten more quickly; that it alters their character and makes them quiet; that it prevents them, if viciously disposed, from goring and injuring other cattle and animals in the same yard with them; that more polled than horned cattle can be accommodated in a straw yard, and that the practice has been prevalent in some parts of the country for years among farmers and dealers, who look upon the practice as advantageous to them for the reasons above given; and, lastly, that the results attained by dishorning could not be attained by any other known means. That the animals themselves are in the least degree benefited by the operation was not seriously suggested, and to me such an idea seems utterly untenable. That it alters their character may be true enough, it is highly calculated to do so.
It may be too, that so altered they more rapidly fatten, and sometimes are more quiet in the straw yard, and it requires no great amount of evidence to prove that more dishorned than horned cattle can be accommodated in the same straw yard, and that if required to travel more can be packed into a railway truck, and finally that by dishorning, each head of cattle may in one way or another be rendered of more value to the owner to the extent of from 20s. to 40s. But how is this benefit derived? Not by utilising the animal as nature formed it, viz. as a horned animal, not even by a curtailment of its horns by the comparatively painless operation of tipping or knobbing, but by artificially altering the character and species of the animal altogether, and converting the horned animal into a polled one, and that by means of so torturing an operation that one shudders to think men can be found to perform it.
Is there, can there be, legal necessity or reason for this? My answer is, No. I fail to see any evidence of such necessity or reason.
No owner is compelled by any necessity to turn his horned into dishorned or artificially-polled cattle, or to put into the same yard the same number of horned cattle as he would of polled ones.
If he wishes for polled cattle he can buy naturally-polled animals, though it may be at a small extra price. If, however, to avoid that outlay, he prefers to buy horned cattle, and to enhance their value by 20s. or 40s., by mutilating them at the expense to the poor animals of excruciating torture, how can this be said to be either necessary or reasonable?
Is it necessary that such an end should be attained at such a sacrifice? If not, then the operation is an unnecessary abuse of the animal, and brings the case distinctly within Mr. Justice Wightman's definition of cruelty.
But a striking body of evidence that such an operation is unnecessary and unreasonable is to be found in the fact that throughout vast districts, both in England and Scotland, thousands upon thousands of horned cattle are to be seen, many herding together peacefully enough, grazing in the same fields, confined in the same yards, feeding, thriving and fattening together, and packed together in railway trucks for transportation to market.
It may be that occasionally one of such animals may give a little more trouble than the rest, nevertheless, the farmers, graziers and dealers throughout those districts (which in England comprises the whole country, except the parts of Norfolk and Suffolk above referred to), gentlemen quite as alive to their own interests as those who have adopted this cruel practice, have not for years attempted to adopt it as a remedy for such occasional inconveniences. Is not this abundant proof that dishorning is not necessary for the benefit of the animal or to render it fit for all the legitimate purposes of its owner and that tipping or knobbing have been found to be and are practically sufficient?
In Ireland, and in some counties in Scotland, no doubt, the practice has prevailed, and oftentimes for the purposes of fraud and deception, as will be seen from the evidence of Professors McColl and Collins, and it must not be forgotten that the Highland Agricultural Society, fifteen years ago, denounced the operation as a cruel practice, and still condemns it.
But cases were cited to us as authorities that no operation, however painful, is cruelty within the meaning of the statute "if the purpose for which the act is done is to make the animal more serviceable for the use of man;" this is the dictum of Cleasby, B., in delivering his judgment in Murphy v. Manning 2 Ex. D. 307, at p. 314. In using this language that learned and very humane judge ought not to be taken to have spoken having reference to such circumstances as are now before us, but only generally with respect to certain minor operations, which, though painful, cannot be placed in the same category as this. If the learned Baron did intend his language to be interpreted as contended for the respondents, then I most respectfully decline to adopt that view. Many instances might be put in which, at the cost of extreme suffering to the animal, it might be rendered more serviceable for the use of man by means of an operation which it is impossible to suppose that any legislature would sanction.
What would be said of a man who sewed up the eyelids of his sheep, or cut the hoofs of his cattle to the quick to keep them from moving about as nature dictated, in order that they should more quickly fatten in his field for his profit? But the decision in Murphy v. Manning, carefully looked at, is, so far as it has any bearing on this case, in favour of the appellant's views. There the accused was charged with cruelty in cutting off the comb of a cock. It was contended that the act was justified, among other reasons, because without it the cock could not win prizes for his owner. The Court (Kelly, L.C.B., Cleasby, B.,) held that the man ought nevertheless to have been convicted. Before I deal with the next authority cited for the respondent, I must refer to the case of Brady v. McArgle 14 L. R. (Ir.) 174; S.C. 15 Cox, C. C. 516, where this very practice of dishorning was condemned as cruelty. There it was contended for the accused that the practice was allowable upon much the same grounds as those above enumerated. In that case the magistrates had refused to convict. The Court, however (Dowse, B., and Andrews, J.), held that he ought to have done so, Dowse, B., after referring to the dictum of Cleasby, B., saying that he could not hold that the operation better fitted, or made the animal more serviceable for the use of man, that the acts were done for the convenience of particular individuals, and for their contingent profit, and he made use of this expression: "Nobody can contend that it was absolutely necessary to cut off their horns, and in my view it was eminently unreasonable." Andrews, J., said: "That the dishorning was not done wantonly, but for the purpose of convenience and profit, is not in itself a sufficient defence. It ought to be shewn to be necessary or reasonable under all the circumstances." In the following year, 1885, the same question was practically raised in Callaghan and Another v. Society for the Prevention of Cruelty to Animals 16 L. R. (Ir.) 325; S.C. 16 Cox, C. C. 101, when a different judgment was pronounced by Morris, C.J., and Harrison and Murphy, JJ. This case is, of course, strongly relied upon by the respondents, the facts and arguments substantially were the same as in this case. Morris, C.J., in delivering his judgment, said: "Looking at the suffering in reference to the object with which it is inflicted as found by the magistrates, it cannot in my opinion be considered unnecessary, for the object is reasonable and adequate;" Harrison, J., also treated the practice as a reasonable one and necessary for the proper carrying on of the system of strawyard winter feeding; whilst Murphy, J., said: "The pain caused to the animals cannot be said to be an unnecessary abuse of the animal that is reared up, tended, and fed with the object of having it as soon as possible made ready for slaughter, if the operation by which the pain is caused enables the owners to attain this object either more expeditiously or more cheaply." In the views expressed by these learned judges I am unable to concur.
In the case of Lewis v. Fermor 18 QBD 532 the Court (Day and Wills, JJ.) upheld the decision of magistrates in dismissing a charge of cruelty for spaying sows upon the ground, as I read the case, that honest belief that the act was justified, even though that belief was erroneous, prevented the application of the statute. Day, J., said "cruelty must be something which cannot be justified, and which the person who practices it knows cannot be justified." Wills, J., said, "the proper view is that if the person who performs the operation entertains an honest belief that what is done will benefit the animal, he is not liable to be convicted." Now I am not concerned in forming any opinion whether or not the operation in that case amounted to cruelty, but I shall have a word or two to say in reference to those dicta, after I have called attention to the case of Renton v. Wilson 15 Justiciary Cases (Scotch) 84, argued before Lords Young, McLaren, and Rutherfurd Clark, which is the last authority I think it necessary to mention. That also was a case of cruelty for dishorning; there again the practice was upheld, not however upon the ground that the operation was not painful, or that it was necessary, but upon the ground, as explained by Lord Young, "that the statute does not interfere with human conduct or with the judgment of those who are pursuing their own affairs to the best of their judgment, however much they may be mistaken in the judgment of others," and according to the view of Lord McLaren, because the operation was a "customary operation" to a considerable district of the country, and "performed with a view to a rational purpose, and under the belief that it is necessary for the well-being and control of the animals."
I cannot give my assent to this decision, nor recognise in these views anything which excuses the infliction of such extreme suffering.
With all respect to the opinions of the learned judges by whom these two cases of Lewis v. Fermor and Renton v. Wilson were decided, although I am not prepared to deny that an honest belief based on reasonable grounds in the existence of circumstances which if proved would justify a painful operation, would afford him a defence against a charge of cruelty, even though the circumstances relied on were not as he believed them to be. I do dissent from any notion that a mistaken belief, however honest, that the law justified a painful operation, when in truth it did no such thing, could operate as any excuse at all, except, perhaps, in mitigation of punishment.
If the law were that any man or any body of men could in his or their own interests, or for his or their pecuniary benefit, cause torture and suffering to animals without legitimate reason, and could, when charged with cruelty, excuse himself or themselves upon the ground that he or they honestly believed the law justified them, though in fact it did not, it is difficult to see the limits to which such a principle might not be pushed, and the creatures it is man's duty to protect from abuse, would oftentimes be suffering victims of gross ignorance and cupidity.
Before I conclude I must observe that in this case, as in others cited before us, the operation has been performed indiscriminately upon whole herds of cattle at a time without regard to age, sex, habits, or tempers, not because any of them have shewn themselves to be dangerous, or exhibited the least trace of temper or unruliness, but because possibly hereafter in some feeding-yard some one or more of them may turn out to be troublesome, and because the operation may, for some reason or other, add a few shillings to their price when sold; the animals thus operated upon each year amount in number to tens of thousands. Constant familiarity with unnecessary torture to and abuse of dumb animals cannot fail by degrees to brutalize and harden all who are concerned in or witness the miseries of the sufferers, a consequence to be scrupulously avoided in the best interests of civilized society.
From what I have already said, and for the reasons I have given, it follows that in my opinion the practice of dishorning is a cruel, unreasonable, and unnecessary abuse of the animals operated on, and therefore is illegal and ought to be suppressed, and that the magistrates ought to have convicted the respondent.