Can They Suffer?

In 1843, a local judge got tough on animal cruelty.

Illustration by Lincoln AdamsFor some Americans, few things are as horrifying as the notion that foreign ideas and laws are relevant in a U.S. courtroom. The concept offends their sense of independence and nationhood. But foreign ideas are hard to keep out, as demonstrated by an 1843 Chester County case in which a man was sent to prison for a year for “cruelly” beating a horse.

At the time, Pennsylvania had no anti-cruelty laws. The only legal issue was property damage. Nevertheless, Judge Thomas S. Bell Sr., prosecutor Joseph Hemphill and the local newspaper—all influenced by rising ideas from abroad—decried the horse’s suffering.

“I think they found the law frustrating in that they knew what happened to the horse was wrong beyond the mere issue of destruction of property and the law did not really give them a remedy,” says David Favre, editor of Animal Legal & Historical Web Center (animallaw.info) and a professor at the Michigan State University College of Law. “It took awhile for the law to catch up with that emotional perspective that animal pain and suffering should count for something.”

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At the time, that perspective was distinctly un-American. In the early 19th century, though independent for more than 50 years, the United States—especially the Northeast—still leaned toward Europe. In particular, it leaned toward Great Britain, which, in 1822, was the first western nation to pass a law against animal cruelty.

The Ill-Treatment of Cattle Act—covering horses, donkeys, cattle and most large working animals—was British humanitarians’ first victory in a 50-year campaign, which was part of a larger reform movement that began in the late 18th century. Slavery, for instance, was abolished in the British Empire in 1833, capping a movement that commenced with the 1783 formation of that country’s first abolitionist group.

In 1808, after discovering that many prison inmates had committed crimes because they were mentally ill, Britain passed a County Asylums Act requiring local authorities to care for “lunatics.” And a century-long battle gave women the vote in 1918. Britain’s temperance movement, however, fizzled before achieving nationwide prohibition of alcohol.

The fight against animal cruelty began in 1776 when an Anglican minister, Rev. Humphrey Primatt, published A Dissertation on the Duty of Mercy and Sin of Cruelty to Brute Animals, in which he argued the applicability of the Golden Rule. “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,” wrote Primatt. “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.”

Legal protection for animals was first proposed by English lawyer Jeremy Bentham in his 1789 Introduction to the Principles of Morals and Legislation. Bentham argued that the capacity to suffer was the primary criteria determining whether a creature deserved legal consideration. “The question is not, ‘Can they reason?’ nor, ‘Can they talk?’ but, ‘Can they suffer?’” said Bentham in a piece of rhetoric still quoted by animal-rights activists.

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Such ideas filtered slowly through Britain’s upper classes. Not until 1809 was legislation proposed, which then failed to pass Britain’s House of Lords. It finally took an Irish member of Parliament, Richard Martin, to push through a successful bill. Martin, who once fought a duel to avenge the killing of a dog, was thereafter known as “Humanity Dick.”

Martin subsequently collaborated in the founding of what would be the Royal Society for the Prevention of Cruelty to Animals. Intended to push enforcement of the law, the group would expand to America in 1866. But Americans had begun thinking about the issue well before that.

In 1821, Maine made it a crime to “cruelly beat” any horse or cattle. According to Favre, it was the first piece of U.S. legislation to attack cruelty without regard to ownership. “Since common law criminal law concepts did not limit what a person did with their own property, this law suggested a new societal interest: concern for the animal itself,” he says.
 

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On the other hand, he notes, punishment was mild: up to $5 and/or 30 days in jail. In contrast, anyone convicted of “willfully and maliciously” maiming farm animals belonging to someone else could be fined up to $500, jailed for up to five years or both.

Stiffer laws followed. An 1829 New York law, for instance, demanded imprisonment of up to one year to anyone who “cruelly beat or tortured” his horses or cattle, though the offense was still considered a misdemeanor. Most laws covered only commercially valuable animals. In Minnesota, a person who had deliberately injured a dog escaped indictment when a judge ruled that a dog was not a “beast,” as described in the law. Not until 1867 was there a law (in New York) protecting “any living creature”—livestock, but also pets and wild animals—against overt cruelty and neglect, regardless of ownership.

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In the meantime, concern spread as Americans discussed various proposals and considered British attempts at enforcement. From the 1830s through much of the 1850s, newspapers increasingly carried articles reporting acts of cruelty and editorials denouncing them.

In August 1846, for instance, the Philadelphia Inquirer criticized operators of horse-drawn trolleys for overloading their vehicles in the summer heat: “The proprietors and drivers should exercise as much humanity as possible,” scolded the newspaper. “The horse is a noble and useful animal, and he should be treated accordingly.”

Elsewhere, a small but persistent cohort of ministers, physicians and politicians publicly exhorted people to be kind to “brutes.” Locally, Bell and Hemphill would’ve been representative of such leaders—educated, high minded and in positions to influence events.

Born in Philadelphia, Thomas Bell moved to West Chester soon after being admitted to the bar in 1821. Any Philadelphia-trained lawyer would’ve been impressive in Chester County’s rustic legal community, wrote local historian Douglas Harper. But Bell was also “energetic and a good speaker,” and he made the excellent career move of marrying Caroline Darlington, the daughter of a local judge.

Bell allied himself with the liberal branch of the Democratic-Republican Party, which controlled local politics. He was appointed district attorney for Chester County in 1823. Fourteen years later, he represented both Chester and Montgomery counties at a convention to revise the state constitution.

Appointed president judge for Chester and Delaware counties in 1839, Bell served until 1846, then resigned to serve five years on the state supreme court. One example of his thinking was seen in an 1842 case in which the owners of several local cotton mills had employees indicted for “conspiracy” to raise their wages by forming a union. Bell instructed the jury that there was no law forbidding this. “Peaceably to meet and discuss the proper steps to be adopted for the protection or advancement of their common interests can never be objected against American citizens as an offense,” he said.

West Chester native Joseph Hemphill came from a family of lawyers. In 1848, he ran unsuccessfully for Congress as a Locofoco, a liberal splinter group of the Democratic Party that had a pro-reform and pro-labor platform. Like Bell, Hemphill was an active abolitionist. In the 1840s, he signed a petition to the legislature from the Chester County Bar favoring abolition of the death penalty. “His mind was of an eminently judicial cast,” said the Daily Local News at Hemphill’s death, “and had he reached the bench, we have reason to believe he would have proven a worthy successor to the distinguished citizens of Chester County.”

Bell and Hemphill were also brothers-in-law; Bell married Hemphill’s sister, Keziah, as his second wife. Both men were likely to have been sympathetic to the emerging concept of animal rights. In any case, they didn’t let it pass when, in August 1843, local farmer Enos Smedley complained that a hired hand, John Anderson, had abused his horse.

Testimony has been lost, but a newspaper account of Commonwealth v. John Anderson reported that the man had been harrowing a cornfield. The horse was described as “a tractable and good worker,” though perhaps not on that day. Anderson, the jury ruled, “unlawfully, willfully, maliciously, cruelly and publicly did beat, wound and ill-treat, and one of the eyes of the said horse then and there did destroy and put out, to the great damage of the said Enos Smedley, to the evil example of all others in like cases offending and against the peace and dignity of the Commonwealth of Pennsylvania.”

And the Daily Local News chimed in: “We hope that the example will not be disregarded,” wrote an editor, “as cases daily occur in which unfeeling persons render themselves liable to punishment for wanton cruelty to dumb animals.”

Which, again, was saying a lot, considering that the law as written could punish Anderson only for property damage. But new ideas were afoot.

Mark E. Dixon welcomes comments. Write a letter.
 

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