Regulation of Violence in the Household: Chastisement of Wives, Children, and Servants

Under the common law doctrine of the eighteenth and early nineteenth centuries, the head of the household, in his role as husband, father, and master, traditionally had authority to “chastise” or “correct” his spouse, children, and domestic workers.Footnote ⁴ The authority of the head of the household was not absolute: He generally held only the limited right to impose “moderate correction,” which meant, in a very fact-specific sense, correction suited to the misbehavior in question. Courts, however, often avoided intervening in all but the most egregious cases of domestic violence, typically upholding a family governance model that analogized the head of the household to a “court” holding primary “jurisdiction” over a case. State courts were available to hear “appeals” from the family government, but gave the deference normally accorded a lower court. In describing a parent’s right to chastise his child, Tapping Reeve, author of America’s first family law treatise in 1816, emphasized that “[T]he parent ought to be considered as acting in a judicial capacity when he corrects, and, of course, not liable for errors of opinion” (Reeve Reference Reeve1862, 420). Moreover, if a parent’s motives were proper, the court would not second-guess the level of punishment inflicted. Reeve, stated, for example, that “although the punishment should appear to the triers to be unreasonably severe, and in no measure proportioned to the offense, yet, if it should also appear that the parent acted conscientiously, and from motives of duty, no verdict ought to be found against him”(Reeve Reference Reeve1862, 420).

The common law rules regarding the right of chastisement reflected a household hierarchy implicitly recognized by the common law in which the husband was head, with his wife, then domestic employees and children, then property such as slaves (in America) and animals, beneath him. By the late eighteenth and early nineteenth centuries, contemporary legal thinkers such as Blackstone and Tapping Reeve denied that courts widely recognized the right of spousal chastisement.Footnote ⁵ From a very early stage, however, courts expressed a special reluctance to intervene in marital affairs. At common law, wives had no civil remedy against their husbands. As explained by Reeve: “The nature of the connection between [husband and wife] is such, that no atrocity of conduct … can give either a right to an action to recover damages” (Reeve Reference Reeve1862, 141).

When faced with domestic violence claims, judges routinely invoked the common law privacy doctrine, which holds that family relations are a “private” matter into which courts should not intrude (Grossberg Reference Gordon1985, 6, 11; Siegel Reference Siegel1996, 2132–40). As an example, in State v. Rhodes, an 1868 North Carolina Supreme Court decision, the judge ruled against convicting Rhodes for assault and battery of his wife, reasoning:

This language from the Rhodes opinion, which is similar to that of many other contemporary opinions (see, for example, State v. Black, 60 N.C. (Win.) 262, 267 (1864)), suggests broad acceptance of the idea that family relationships were inherently private and that, as a normative matter, judges should protect family privacy and severely limit intervention by government in family affairs. Again, according to the Rhodes court, “raising the curtain upon domestic privacy” in order to prevent violence between spouses was a greater evil than punishing “trifling” violence.

In contrast to the more ambiguous legality of the martial chastisement right during the late eighteenth and early nineteenth centuries, the common law clearly recognized fathers’ right to chastise their children and those domestic employees in relation to which he stood, by consent, in loco parentis (Pleck Reference Pleck1987, 34–35).Footnote ⁶ With respect to children, for example, according to Reeve:

The key factor in determining whether a father’s corporal punishment was “moderate” was to examine his intent in administering punishment. A jury determination that the father acted with a bad intent, an unleashed and irrational temper, malo animo, potentially opened the door to government enforcement of the criminal laws for assault (Reeve Reference Reeve1862, 420–21). In general, however, common law regulation of violence toward children and domestic employees was modest (Pleck Reference Pleck1989, 34).

As property, slaves and animals had, respectively, the most inferior legal status within the household hierarchy. Slaves were almost universally characterized under state law as subject to the absolute authority of their masters. Indeed, physical chastisement was the normal course in many master/slave relations (Morris Reference Morris1996, 182–208; Tushnet Reference Tushnet2003). As the legal historian Lea VanderVelde has shown, although the master’s right of chastisement in higher status free labor contexts was taken away by the 1830s and 1840s, the historical evidence suggestion that there was “an accompanying entrenchment of beatings for lower-order labor statuses, such as slaves and sailors” (Vandervelde Reference Vandervelde2016, 746). Commonwealth v. Turner, a case decided by the General Court of Virginia in 1827, was exemplary in denying jurisdiction in a case where the master was found to have “wilfully and maliciously, violently, cruelly, immoderately, and excessively beat, scourge[d] and whip[ped]” his slave (26 Va. 678, 678 (1827)). The court held that it had no basis for jurisdiction over the case, either under statutory or common law authorities (ibid.).

As early as the late eighteenth century, some colonies enacted statutes intended to protect slaves from the worst forms of cruelty. Judicial opinions of the early nineteenth century reveal that some states based their law of cruelty toward slaves loosely on the common law regulation of treatment of domestic employees, that is, in theory, prohibiting cruelty motivated by malo animo (see, for example, James v. Carper, 36 Tenn. 397, 397, 402, 404 (1857)). According to Thomas Morris, however, even in these states, the law on the books and the law as enforced were extremely different (Morris Reference Morris1996, 183–85). It is fair to say that cruelty toward slaves within the household, unless the slave was severely maimed or killed, which was prohibited, typically occurred free from prosecution (see James v. Carper, 36 Tenn. 397 (1857); Wilson v. State, 29 Tex. 240 (1867)).

Common Law Regulation of Public Cruelty to Animals: Public Nuisance and Malicious Mischief Doctrines

The first colonial animal cruelty law was included in the 1641 Massachusetts Body of Liberties, which states: “[N]o man shall exercise any Tyranny or Cruelty towards any Bruit Creatures, which are usually kept for the use of man” (General Laws and Liberties of the Massachusetts Colony 1672, 39). Evidence of its enforcement is lacking (Leavitt Reference Lansbury1970, 13–17. Outside of Puritan Massachusetts, in the seventeenth, eighteenth, and for much of the nineteenth century, violence to animals was accepted as a natural feature of life (see Ryder Reference Ryder1989, 55–58).

Animals had a far greater presence in cities in the nineteenth century. Slaughterhouses were a much more central part of city life than today: prior to widespread use of refrigerated train cars in the 1870s and 1880s, they were more centrally located near marketplaces and cattle were brought live through town on their way to being killed (see Cronan Reference Cronan1991, 208–12). Cock-fighting, bear-baiting (involving dogs and bears), bull-baiting, and fox hunting were favorite forms of entertainment for the wealthy (see E.S. Turner Reference Turner1964; Carson Reference Carson1972, 63–94). Vivisections (dissection or experimentation on live animals, typically without the use of anesthesia) were a popular upper-class social and educational event in the eighteenth century, even though the animal subjects would wail in pain throughout experiments (E.S. Turner Reference Turner1964, 45; Turner Reference Turner1980; Lansbury Reference John1985; Richards Reference Richards and Rupke1987, 125, 136; Ryder Reference Ryder1989, 56). Most legal limitations on animal owners’ use and enjoyment of animals on their property were inconceivable.

Concern for public order, social control, and decency propelled nineteenth century judges to apply various common law rules to prohibit cruelty to animals. Initially, cruelty to animals was prosecuted incidentally, as merely one of many possible types of public harms. Animal cruelty was not singled out as a particularly egregious kind of conduct. Indeed, existing state law typically ran against efforts to prosecute. Remarkably, Blackstone’s Commentaries of the 1780s makes no mention of animal cruelty in its long and detailed list of offenses indictable as nuisances, which included broken bridges and obstructed rivers; keeping hogs in the city; disorderly inns, gaming houses and stage plays; lotteries; the making of fireworks; eavesdroppers; and common scolds (women disturbing the peace with noisy and abusive behavior) (4 Blackstone, 167–70).

The 1788 Pennsylvania Supreme Court case of Respublica v. Teischer was an early case upholding a conviction for “maliciously, wilfully, and wickedly killing a horse” (1 U.S. 335 (1788)). Justice M’Kean explicitly conceded that there were no state precedents for prosecuting cruelty to animals. Yet, he held that “whatever amounts to a public wrong may be made the subject of an indictment” (ibid., 337). In affirming the lower court’s conviction, Justice M’Kean emphasized the breadth of offenses indictable as public harms, listing “the poisoning of chickens; cheating with false dice; fraudulently tearing a promissory note, … [b]reaking windows by throwing stones at them, … and the embezzlement of public monies.” He concluded that each of these “have, likewise, in this State been deemed public wrongs, for which the private sufferer was not alone entitled to redress” (ibid., 338). Thus, in contrast to singling out animal cruelty for special attention, the judge grounded his decision in the breadth of the conduct encompassed by the public harm offense (that is, the offense fit in under a very wide umbrella).

Following Respublica v. Teischer, regulation of behavior in public spaces expanded dramatically over the eighteenth and nineteenth centuries. Arrests for breaches of the peace, vagrancy, drunkenness, assembling, and other morals violations were commonplace (Novak Reference Novak1996, 148–89; Goluboff Reference Glenn2016). As the historian William Novak has described, “public nuisance law was one of the most potent regulatory weapons in the common law arsenal, subjecting an offender to bold public remedies” (Novak Reference Novak1996, 158). Perhaps not surprisingly, in the early decades of the nineteenth century, indictments for cruelty to animals in a public place appear in various state court records. U.S. v. Jackson, an 1834 case from Washington D.C., is a typical public nuisance conviction for animal cruelty. The indictment described the offense as: “[I]n the public street … in view of the said streets and dwellings and said citizens,” Daniel Jackson “did cruelly with clubs and stones, beat, strike and grievously wound and kill a certain cow … to the terror and disturbance of the said citizens” (26 F. Cas. 555, 555 (1834)). The judge in the case refused to quash the indictment on the grounds that Maryland common law did not recognize cruelty to animals as an offense, and the Virginia cases were “founded upon the peculiar qualities of slavery.” In contrast, the court instructed the jury that the offense in question was cruelty as a public nuisance (see United States v. Logan, 26 F. Cas. 990 (1821)).

With regard to the slavery cases, it appears that the public nuisance doctrine as it related to cruelty to slaves paralleled the doctrine as it related to animals. The cases often compared the two contexts. The 1827 Virginia case of Commonwealth v. Turner, for example, reaffirmed the authority of a master over his slave within the context of the household, but held that public cruelty to slaves and animals could be punished under public nuisance doctrine. According to the court:

Similarly, State v. Hale, decided by the Supreme Court of North Carolina in 1823, stated that:

These cases illustrate clearly that slaves, like animals, were protected only indirectly, that is, when their owners’ conduct constituted a breach of the peace or other public harm.

A second doctrine under which animal cruelty was punished under eighteenth century common law was malicious mischief, defined as malicious destruction of someone else’s property. Blackstone’s Commentaries notes that malicious mischief is an “injury to private property, which the law considers as a public crime” (4 Blackstone, 243).Footnote ⁸ Blackstone defines it as a destruction of someone else’s property, not for indirect profit, but out of a “spirit of wanton cruelty, or black and diabolical revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property, of individuals” (ibid.). Throughout the American states, the requirements of the crime of malicious mischief as applied to animal property were initially uniform: the prosecution had to show a “malicious” or “wicked” intent, and the maiming, or killing of someone else’s animal property.Footnote ⁹ Just as in the case of cruelty toward children, the crime was constituted by the malicious state of mind in which the acts were done. According to an 1825 New York case, People v. Smith, for example:

The New York court cited similar cases from Pennsylvania and Massachusetts and emphasized that “[i]t cannot be expected, that the mere liability to damages, will operate on a mind so depraved. … The perpetrator may be insolvent; and thus gratify his malice with impunity, if there is no redress otherwise than by civil action” (ibid., 259).Footnote ¹¹ Initially, however, justifications, such as that the animal was killed because it had damaged the offender’s property, sufficed as complete defenses (see Wright v. Georgia, 30 Ga. 325 (1860); Duncan v. State, 49 Miss. 331 (1873); Darnell v. State, 6 Tex. App. 482 (1879)).

Early Anticruelty Statutes

In 1828, New York became the first state to enact an anticruelty law applying to animals. According to the statute:

Nineteen other states enacted similar statutes by 1865 (Leavitt Reference Lansbury1970, 17).Footnote ¹³

Although the language of the New York statute might suggest a generalized concern with animal abuse, initially courts in New York and other states widely interpreted the statutes as legislative reiterations of the preexisting common law rules of malicious mischief and public nuisance. The first sentence in the statute above—prohibiting maliciously killing, maiming, or wounding an animal “belonging to another”—for example, was interpreted as a legislatively enacted version of the malicious mischief prohibition (see State v. Beekman, 27 N.J.L. 124 (1858); State v. Smith, 21 Tex. 748 (1848)). The second sentence—extending prosecution to those who “maliciously or cruelly beat or torture any such animal” whether belonging to himself or another—was viewed as a legislatively-enacted version of public nuisance law (McCrea Reference McCrea1910, 34; Commonwealth v. Tilton, 49 Mass. 232 (1844)). These statutes were therefore applied in a manner that excluded animal cruelty by the animal’s owner unless (1) the owner “maliciously or cruelly beat or torture[d]” the animal and (2) did so in public. Thus, despite the existence of animal anticruelty statutes in increasing numbers of states, there was not at this time, for example, widespread suppression of cock-fighting, bull-baiting, or private hunting and other forms of entertainment relying on cruelty to animals (McCrea Reference McCrea1910, 61–62).Footnote ¹⁴ Even though these activities often involved a clear public dimension, judges viewed them as off-limits because they occurred on private property.

An animal cruelty case from Texas, State v. Smith (1858), reveals that in denying that anticruelty provisions applied to violence occurring on private property, courts invoked the same “privacy” rationale that was applied in domestic violence cases. As mentioned above, the privacy rationale immunized heads of households from criminal prosecution and civil suit on the theory that courts’ interference with private domestic relations was a greater harm to society than the conduct itself (Grossberg Reference Gordon1985, 6, 11; Siegel Reference Siegel1996). State v. Smith required an interpretation of Texas’s first animal anticruelty statute, enacted in 1856. The statutory language was more expansive than New York’s 1828 statute in that, “any person,” whether the owner or not, could be prosecuted, and for abuse of “any dumb animal,” not just the domesticated animals listed in the New York statute (State v. Smith, 21 Tex. 748, 748 (1858)). Still the Supreme Court of Texas quashed an indictment of the lower court on grounds that the defendant owned the animal that he beat to death (not relevant from the language of the statute). The court reasoned that prosecutions for animal cruelty were an invasive form of government intervention into private matters that would bring disharmony to the community. According to the court:

After the Civil War, the animal welfare movement began campaigning for animal cruelty laws that treated the infliction of pain as a crime, irrespective of the limitations, such as privacy and ownership, that had previously existed under the common law.

The Animal Welfare Movement’s Rise

The great transformation in popular conceptions of animals can be attributed to the widespread acceptance that sentience is universal to all living beings, and that infliction of pain is a normative and ethical problem. In the nineteenth century, as pain entered the realm of ethics, many social institutions that functioned through domination were considered in need of reform. Historians have recognized 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 (Turner Reference Turner1980, 34–37; Glenn Reference Francione1984, 3–4). The first three decades of the nineteenth century was the period of the emergence of the modern prison system—which removed execution from the public streets (Foucault Reference Favre and Tsang1979, 3–69, 293–308). In keeping with broader trends, the animal welfare movement emerged first in England, where William Wilberforce helped to found the Royal Society for the Prevention of Cruelty, which gained official recognition in 1840.

The dominant presence of slavery greatly shaped the contours of humanitarian movements in the United States, even more so than in Britain. The antislavery movement gained force in the early nineteenth century, leading to Garrison’s open advocacy of “immediate emancipation” in 1830 (Walters Reference Walters1976, xi). The historian Elizabeth Clark has emphasized that in the thirty years before the Civil War, abolitionists focused on violence as a primary harm in the master-slave relationship (Clark Reference Clark1995, 463–93). As Clark has compellingly described, by basing their “claim to rights on the very capacity to suffer and feel pain,” abolitionist rhetoric helped evolve humanitarian sentiments toward sympathic responses to physical cruelty (Clark Reference Clark1995, 487). To Clark, by the time of the Civil War, “legal standards came to incorporate (albeit imperfectly) the idea that to be free of physical coercion and deliberately inflicted pain was an essential human right” (Clark Reference Clark1995, 463). Susan Pearson’s The Rights of the Defenseless incorporates Clark’s theory into a broader account of the changing sensibilities driving the post-Civil War animal welfare movement (Pearson Reference Pearson and Anderson2011, 111–15).

Humanitarian discourse in the United States ran parallel to Jeremy Bentham’s utilitarianism in England. Jeremy Bentham’s Introduction to the Principles of Morals and Legislation of 1780 presented a simple pleasure/pain calculus, which he viewed as applying to animals and to humans equally. In what, perhaps, remains to this day the central justification for better treatment of animals and animal rights, Bentham asks about animals: “[T]he question is not, Can they reason? Nor, Can they talk? but, Can they suffer? (Bentham Reference Bentham1789, 310–11, n. 1).Footnote ¹⁵ Moreover, scientific developments created an intellectual environment receptive to an anthropomorphized conception of animals. Anthropomorphized depictions of animals became widespread in popular culture and scientific literature, generating a receptiveness to new ideas about the standards of treatment animals deserved (E.S. Turner Reference Turner1964, 51–64; Ritvo Reference Ritvo1987, 31–32, 298, n. 114).

The central legal antecedents of the animal cruelty movement were the aggressive enforcement mechanisms achieved by the temperance movement. In the 1830s and 1840s, the temperance movement emerged as the first movement to explicitly advocate against family violence (Pleck Reference Pleck1987, 49–66; Siegel Reference Siegel1996, 2127). In the 1850s, state legislatures enacted laws expanding the role of the police in arresting individuals for intoxication, and held inns, restaurants, and liquor stores liable for serving alcohol to intoxicated people or to people who had been identified as habitual drunks. Wesley MacNeil Oliver’s research reveals that “[t]he modern notion of probable cause, as an evidentiary threshold permitting a search or arrest that can be satisfied by the fruits of an officer’s investigation, is a creation of the mid-nineteenth century” temperance movement (Oliver Reference Oliver2010, 377). The first prohibition statute, enacted in Maine in 1851, and amended and adopted in 1853, was innovative in allowing liquor searches after “three complainants swore that they had probable cause to believe alcohol would be discovered in the search” (Oliver Reference Oliver2010, 409). According to Oliver, from the generic standard of allowing evidence of suspicion to be presented to the magistrate at a later time, “it would be no great leap to permit officers to perform arrests when the facts available to them provided probable cause to believe a crime had occurred and the suspect had committed it” (Oliver Reference Oliver2010, 409).

Even more dramatically, the 1857 New York temperance law, which a judge later invoked as a precedent to defend the arrest powers of the ASPCA, required police to immediately arrest all intoxicated people in public places, with no requirement of a warrant (Davis v. American Society for the Prevention of Cruelty to Animals, 16 Abb. Pr. (N.S.) 73 (1878)). The statute made it the “duty of every such officer, whenever he shall find any person intoxicated in any public place, to apprehend such person and take him before some magistrate of the same city or town” and, if the person was too intoxicated to take an oath, the person was to be put in jail until he became sober, at which point the person was to be fined ten dollars and potentially keep in jail or a work house for ten days.Footnote ¹⁶ By requiring police to immediately arrest intoxicated persons and by establishing a streamlined criminal process to prosecute offenders, the temperance laws led to a rapid and massive impact (Bordin Reference Bordin1981; Epstein Reference Epstein1981; Montgomery Reference Montgomery1993, 64–71; McGirr Reference McGirr2016). As will be described, the post-Civil War animal cruelty laws vested the power to arrest in private ASPCA officials. Judges upheld ASPCA arrests even when the common law requirements of breach of the peace or common law privacy might have dictated otherwise.

From the start, the animal welfare movement had two dimensions. One aspect of reform was propelled by concern for animal suffering. The second and more compelling reason for the emergence of animal cruelty laws involved a widespread desire for greater social control measures. The quintessential animal cruelty prosecutions in the late nineteenth century involved men who drove horses pulling carts or buses for a living, or the suppression of entertainment like cock-fighting and bull-baiting, which were perceived as disorderly events of the lower class. Like the temperance movement, the animal cruelty movement lobbied for favorable legislation to use the power of policing and enforcement to achieve social transformation rapidly.

A Crime Rooted in Animal Suffering

A striking example of a case that treated the 1867 law as creating new offenses was People v. Brunell, an 1874 New York case brought by the ASPCA against drivers of horse-drawn passenger carts, described at the outset. It exemplified a shift in judicial reasoning to a focus on animal suffering, rather than on the harm to the public incident to witnessing cruelty (48 How.Pr. 435, 435 (1874)). Judge Sutherland’s jury instructions framed the harm as the cruelty, not the harm to the public. He emphasized:

Demonstrating a shift to concern for the animals, from the perspective of the animals themselves, he told the jury:

Judge Sutherland’s advice to the jury reveals the mechanism by which the sympathetic conception of animals advanced by animal welfare advocates was dispersed to the public and translated into a greater volume of convictions. By emphasizing the animals’ status as in a dependency relationship with humans, and by promoting an anthropomorphized conception of animals—describing the horses as “pleading” with the jury—he pushed the jury toward adopting the animal welfare agenda as defined by the ASPCA and other groups. It is, perhaps, no surprise that the jury returned a verdict of guilty against the two defendants in the case (who were then fined $200 and $250, respectively). More important, People v. Brunell exemplifies the way in which receptiveness to the animal welfare crusade led judges to articulate the crime of animal cruelty in terms of the inherent wrongfulness of the suffering of innocent, dependent, sentient beings.

Grise v. State, decided by the Supreme Court of Arkansas in 1881, in dicta more explicitly interpreted the animal cruelty law as creating a new type of offense (37 Ark. 456, 457 (1881)). Grise involved a man who killed a neighbor’s pig that had routinely entered Grise’s property and eaten his crops. Grise killed the pig by hitting it once, according to the court, “with no more circumstances of cruelty than would attend the taking of life at one blow” (ibid., 457). Grise was prosecuted under a provision of an 1879 Arkansas anticruelty act, which made it a misdemeanor to “needlessly mutilate or kill … any living creature.” As in many cases where animals were killed for repeated trespassing, the Supreme Court of Arkansas held that Grise had not “needlessly” killed the animal.Footnote ²⁵

The significance of Grise is that it was the first case in which the Arkansas Supreme Court interpreted Arkansas’s anticruelty statute, which was enacted in 1879 and modeled on New York’s statute. The court interpreted the statute in very radical terms, emphasizing that it intended “to transcend what had been thought, at common law, the practical limits of municipal government” (ibid., 458). According to the court, modern animal anticruelty statutes:

Grise was radical in explicitly articulating the view that the animal anticruelty statutes “seem to recognize and attempt to protect some abstract rights” in animals. Moreover, the case interpreted the Arkansas statute extremely broadly as applying to cruelty even occurring “in the solitude of closed rooms or secluded forests.” Grise’s holding was limited to a finding that Grise was justified in killing the hog in question. The dicta cited above, however, invited the police and animal welfare advocates to bring actions against people who subjected animals to suffering, no matter where or in what context the cruelty occurred.

The Question of Common Law Privacy and the Requirement of a Breach of the Peace

In the courts of New York, the judges were not in consensus on the proper interpretation of the animal cruelty laws. Whether, substantively, the law vastly changed the nature of the offense of animal cruelty was in dispute. All agreed, however, that the power of warrantless arrests conferred upon ASPCA officials was a departure from earlier precedents. In The Stage Horse Cases, where the principal issue was the extent of ASPCA officials’ arrest power, the judges treated the law more conservatively. Judge Daly stated his view that the 1867 act “was declaratory only of the common law.” Yet, he noted that at common law “deliberation was necessary, as evidencing the wicked intent to inflict injury upon the animal,” for a conviction for animal cruelty (Broadway et. al. v. American Society for the Prevention of Cruelty to Animals, Christie v. Bergh, 15 Abb.Pr.(N.S.) 51, 63 (1873)).Footnote ²⁶ In contrast, “Under this act of 1867, certain of the offenses designated are by their commission alone evidence of a willful intent to commit a misdemeanor—such as overloading or overdriving, … cruelly beating or needlessly mutilating or killing or depriving of necessary sustenance, any dumb animal.”(ibid., 63–64). Thus Judge Daly emphasized continuity with the common law, while recognizing that the statute eliminated the “malice” requirement of the animal cruelty offense. Moreover, finding that the conduct constituted a breach of the peace was no longer required. Therefore, in this case, the ASPCA officials were justified in stopping the cars when the horses were treated cruelly.

In contrast, Judge Shea argued that the 1867 statute allowed only prosecutions for cruelty amounting to public nuisances. According to Shea:

Driving injured or disabled horses did not amount to a breach of the peace. Yet, as described above, Judge Shea rejected the motion for a general injunction because under the statute ASPCA officials were authorized to make arrests. If the stage car companies wanted to make a specific allegation of malicious prosecution against Bergh or others, they would have to do so in another case. The Stage Horse Cases did not reject the requirement of a breach of the peace, but expanded what it encompassed to driving injured or disabled horses when it constituted cruelty.

Similarly, a case in New York, in 1874, was a landmark for further transforming breach of the peace doctrine to include conduct on private property. Davis v. Society for Prevention of Cruelty, was brought by a slaughterhouse company on West 39^th Street, requesting an injunction against Henry Bergh and his associates (16 Abb. Pr. (N.S.) 73, 73 (1874)). ASPCA officials had entered its premises and had threatened to close its operations unless the company complied with their demands. Like The Stage Horse Cases, decided the year before, the question before the court was whether Bergh and other ASPCA officials had exceeded their authority under the 1867 anticruelty statute.

Bergh argued that the slaughterhouse company and its employees constantly violated the 1867 statute, not for killing hogs, but because their methods “needlessly tortured and tormented” the hogs before their death (ibid., 75). The slaughterhouse policy was to fasten an iron chain around the hogs’ ankles, lift them four stories above their pen, dislocating their legs, then stab them in the throat and immediately plunge them in boiling water, ensuring that they remained alive when they reached the water (ibid., 73). The ASPCA demanded that the company prevent dislocation of the hogs’ legs by using a leather strap, and fully kill the hogs before they entered the boiling water.

The judge decided in favor of the ASPCA, denying the slaughterhouse’s request for an injunction. The court invoked the 1857 temperance law in New York as a central precedent for allowing warrantless arrests. According to the court, ASPCA officials, “being thus clothed with proper legal authority … should not be interfered with or restrained; unless [their official action] be injurious and wrongful in its nature” (ibid., 78). Moreover, the judge characterized the principal question in analyzing the ASPCA’s demands as “whether or not … wanton acts of cruelty are allowed and practiced, such as dislocating the limbs of the animals slaughtered and plunging them while yet alive in boiling water” (ibid., 78–79). By holding that the 1867 act covered slaughterhouse practices, Davis v. Society for Prevention of Cruelty reflected the acceptance of a greatly expanded conception of the proper scope of government regulatory authority. Notably, it was decided the same year as the first child cruelty case, which was brought by the ASPCA.

Lowering the Threshold for Cruelty: Widespread Rejection of the Malice Requirement and Protection for Owners

A thread connecting all of the above cases was that focusing on the suffering of animals led to the elimination of the intent element in animal cruelty offenses. The common law requirement of a “cruel” or “malicious” intent suggested that the harm to animals was a secondary effect of the true public crime—unchecked aggression and a dangerous lack of self-control. Malicious mischief, it may be recalled, required malice toward an animal’s owner and was characterized as a public crime because the “act discovers a degree of moral turpitude, dangerous to society” (Kilpatrick v. People, 5 Denio 277 (1848), citing People v. Smith, 5 Cow. 258 (1825)). The post-Civil War animal anticruelty statutes made the former elements of the malicious mischief doctrine irrelevant.

First, in cases brought on the issue of whether anticruelty statutes applied when animals were harmed by their owners, judges held that ownership of the animal did not provide immunity from the new laws.Footnote ²⁷ In Commonwealth v. Lufkin, the Massachusetts court held, “The cruel treatment which the statute contemplates is the same, whether inflicted by the owner of the animal or by another. … The title to the horse has nothing to do with this offence” (89 Mass. 579, 582–83 (1863)). Similarly, State v. Bruner, an Indiana case, held that the animal cruelty law adopted “a scheme for the protection of animals without regard to their ownership. A man may be guilty of cruelty to his own animal, or to an animal without any known owner, or which has in fact no owner” (12 N.E. 103, 104 (1887)). A West Virginia court, citing the Arkansas Supreme Court in Grise, determined “The ownership of the animal is totally immaterial”(State v. Gould, 26 W. Va. 258, 262 (1885)).

Moreover, when the perpetrator of the cruelty was not the owner, courts no longer required malice toward the owner. Indeed, as in the New York cases, judges began inferring a cruel intention from the kind of harm done to the animal.Footnote ²⁸ In State v. Avery, a New Hampshire case, the court stated that “If the beating was wrongful, because cruel and severe, and was done intentionally, … the law would regard it as malicious” (44 N.H. 392, 396 (1862)).

Whether one could be convicted for conduct driven by a seemingly innocent motivation was prominently addressed in an 1886 Missouri Court of Appeals case, State v. Hackfath (20 Mo.App. 614, 614 (1886)). Hackfath was engaged in hauling lumber with a team of two horses. One of the horses “became balky” and Hackfath tried to make it go “by urging it, and pulling it.” As a last resort (he claimed), he struck the horse on the head with a club. The horse then immediately fell down and died. Hackfath asked the lower court to instruct the jury that he should be acquitted unless they found that he had “an intent to torture and kill the horse.” Yet, the appellate judge held that at issue were “the consequences of his voluntary act.” Because there is “no pretense that the striking of the horse was accidental and not intentional,” the lower court conviction should stand (ibid., 614–15).Footnote ²⁹ Similarly People v. Brunell, described above, included the following jury instructions: “The question really is not, gentlemen, whether they intended to torture the horse; the question really is, whether they willfully caused certain things or acts to be done which did necessarily torture the horse” (48 How.Pl. 435, 443 (1874)). In State v. Neal, the Supreme Court of North Carolina upheld a conviction for cruelty in killing a neighbor’s chickens emphasizing “This is not a case of ‘intent,’ which is an inference of inner motive to be drawn by the jury … but of conduct, cruelty, independent of other intent if willful, and the defendant’s own evidence proved that the killing was done willfully” (120 N.C. 613, 621 (1897)).Footnote ³⁰ The Alabama Supreme Court came to a similar conclusion that “Of this offense, malice is not an element. It is against intentional acts, wanton or unlawful, from which injury to the animal results, though the injury may not have been contemplated or intended” (Tatum v. State, 66 Ala. 465, 467 (1880)).

Several cases of the 1870s and 1880s suggest that, once the malice requirement was removed, the threshold level of cruelty to sustain a conviction substantially lowered. Again, State v. Hackfath was a conviction for hitting a horse which refused to pull logs, leading inadvertently to its death. A jury convicted a man in Hawaii for riding his horse “while his back and sides were sore, and by leading another horse while in a similar condition” (King v. Tai Wa, 5 Haw. 596, 597 (1886)). A man was convicted in Connecticut for neglecting to provide horses with adequate food, drink, and protection (State v. Bosworth, 4 A. 248 (1886)). Similarly, in Massachusetts “leaving a horse harnessed to a carriage in the woods, where it remains all night uncared for, when it appears the horse was actually without food and drink for more than twenty-four hours” led to a conviction (Commonwealth v. Curry, 150 Mass. 509, 511 (1890)).Footnote ³¹

Defining “Any Living Creature”

Yet, on certain issues, the statutory language left room for pushback in the courts. One principal ambiguity was that animals were, in fact, covered under the statutes. Remarkably, most of the post-Civil War animal cruelty statutes prohibited inflicting cruelty on “any living creature.” As emphasized in Oscar Quinlan’s critical 1894 essay on the animal cruelty laws, “‘Any living creature’ is an astonishingly comprehensive term. It brings the impalement of a worm on a fish-hook, the eating of live oysters, or the boiling of cholera germs within the scope of the letter of the act”(Quinlan Reference Quinlan1894, 161). The court in Grise, noted the need to construe the statutes “without running into such absurdities as would, in the end, make them mere dead letters. Society, for instance, could not long tolerate a system of laws, which might drag to the criminal bar, every lady who might impale a butterfly, or every man who might drown a litter of kittens” (37 Ark. 456, 459 (1881)). Perhaps because the ASCPA reformers used discretion in selecting the types of offenses upon which to make arrests, there is an absence of reported cases testing the limits of what “any living creature” meant under the laws. As described above, most animal cruelty prosecutions related to domestic animals, including chickens and other fowl. In an 1887 Indiana case questioning whether the laws applied to burning and tormenting a goose, the court upheld the conviction on the grounds that the statute clearly applied (State v. Bruner, 12 N.E. 103 (1887)).

The Question of Hunting for Sport

Courts, of course, recognized that “cruelty” depended to some degree on the purpose for which the pain was inflicted or the animal was killed. As the court stated in Commonwealth v. Lufkin, “a surgical operation, occasioning the most intense suffering, may be justifiable and is not criminal” (89 Mass. 579, 582 (1863)). In State v. Avery, the New Hampshire court noted that the animal cruelty laws, in parallel with the law regulating parent-child relations, do not “interfere with the infliction of such chastisement as may be necessary for the training or discipline by which such animals are made useful”(44 N.H. 392, 396 (1862)).Footnote ³²

Hunting for sport, however, was an area where states came to different conclusions regarding the cruelty of the conduct. In the 1877 case State v. Bogardus, the issue before the court was whether shooting pigeons that were thrown up into the air for sport violated Missouri’s law which made it an offense to “needlessly … kill any living creature” (4 Mo. App. 215, 215 (1877), citing Sess. Acts 1874, 112). According to the judge, “The universal love of so-called ‘sports’ which involve the destruction of animal life cannot now be ignored in a search after the legislative meaning of the act before us.” Even when such sports are not related to human sustenance, “they are not considered ‘needless’ for man’s enjoyment of his legitimate dominion over the brute creation” (ibid., 219). Perhaps more remarkable was Commonwealth v. Lewis, a Pennsylvania animal cruelty case of 1891where the jury convicted a man competing in a pigeon-shooting competition at the local Gun Club. The man missed his target and wounded the pigeon, leading it to fall into a tree (at which point, according to Club rules, another member finished the job). In reviewing the lower court conviction, the appellate court noted that “the defendant has merely been punished for want of skill” (140 Pa. 261, 266 (1891)). The court noted that although “suffering would be spared wild game if sportsmen were better trained. Skill in shooting upon the wing can only be gained by practice.” The court reversed the conviction.

In light of the exemption to the animal cruelty laws carved out in the Missouri and Pennsylvania cases on formal pigeon-shooting, Commonwealth v. Turner, in which the Supreme Court of Massachusetts in 1887 upheld a conviction for fox hunting—where a fox was released, and chased and mangled by dogs—was perhaps surprising, leading to it being a notable precedent (145 Mass. 296, 296 (1887)). Massachusetts state law permitted the killing of foxes and, indeed, authorized towns to give a per head bounty for them.Footnote ³³ Therefore, the defendant argued that Massachusetts animal cruelty law was not intended to cover “noxious animals.” Moreover, the defendant argued that fox hunting did not violate Massachusetts’s anticruelty statute because (like the pigeon-shooting cases) it did not inflict “unnecessary suffering” upon an animal.

The court, however, upheld Turner’s conviction for violating the anticruelty law. The court, first, held that the word “animal” was intended to include “wild and noxious” animals, since the word could be found throughout the statute with no limitation. The court then held that “[t]he right to kill a captive fox does not involve the right to inflict unnecessary suffering upon it in the manner of its death” and that letting loose the fox to be mangled by dogs subjected it to “unnecessary suffering”(ibid., 301).

The dicta in Commonwealth v. Turner, however, was inconsistent with the line of precedents in that the court invoked an antebellum common law approach. Unlike People v. Brunell and Grise, the court explicitly held that Massachusetts’s statute did not define an offense “against the rights of the animals that are in a sense protected.” Citing an 1844 Massachusetts case, in which an innkeeper was convicted on public nuisance grounds for hosting a cock-fight, the court in Commonwealth v. Turner stated that the “offence is against the public morals, which the commission of cruel and barbarous acts tends to corrupt” (ibid., 300). Invoking public nuisance doctrine flies in the face of the statutory language which, as in other states, appeared to repudiate the older common law doctrines. In one sense, Commonwealth v. Turner represents a substantial expansion of the type of action that qualified as being “against the public morals.” Not only was the place in which the fox hunt occurred far more private in nature than the typical animal cruelty offenses had been, but defining a fox hunt as a violation in itself was a radical change in the law. Fox hunts were perceived by the wealthy as a far more civilized sport than, say, cock-fights and bear-baiting events. Fox hunts were perceived as formal and exclusive, and as promoting health and fitness. Commonwealth v. Turner is therefore deeply significant to the transformation of animal welfare law because the judge rejected the former class-orientation of the animal welfare movement.

Interestingly, Commonwealth v. Turner served as a precedent in judicial decisions upholding convictions for pigeon-shooting in both North Carolina (1893) and Colorado (1896). In State v. Porter, the North Carolina Supreme Court emphasized that, “Man’s desire for amusement and sport is no justification for the infliction of suffering or death upon any of the creatures protected by the statute… “ (112 N.C. 887, 889 (1893)). The court continued that since the enactment of the statute, “it has been unlawful in this State for man to gratify his angry passions or his love for amusement and sport at the cost of wounds and death to any useful creature over which he has control” (ibid., 889). In Waters v. People, the Colorado Supreme Court heard a case that was brought as a friendly test-case to advise pigeon-shooters on the court’s interpretation of Colorado’s animal cruelty statute (23 Colo. 33, 33 (1896)). The court recognized the strong differences in private opinion on whether pigeon-shooting constituted unnecessary harm to an animal. The court emphasized, however, that the Massachusetts and North Carolina cases were “in harmony with the advance in enlightened public opinion at this day” and the court viewed these new values as inspiring the Colorado statute (ibid., 39). The Colorado court distinguished the Missouri and Pennsylvania pigeon-shooting cases and emphasized that

The opinion grounds the ban on pigeon-hunting on a sense of much-desired social progress in accordance with the times, a social transformation toward more enlightened values.

The convictions for hunting for sport in State v. Porter, Waters v. People, and Commonwealth v. Turner reveal the extent to which animal welfare law had transformed. Under these landmark decisions, cruelty occurring on private property, or otherwise removed from direct observation, under the post-Civil War anticruelty laws, was equally offensive to decency and public morals as cruelty occurring on the streets.