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Subject Area: Law
Topic: The American Revolution and Constitution

§ 177.: Laws for the prevention of cruelty to animals.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 177.

Laws for the prevention of cruelty to animals.—

From a scientific standpoint, perhaps the most curious phase of the exercise of police power is embodied in the laws for the prevention of cruelty to animals. These laws now prevail very generally throughout the United States, and public sentiment is in most communities unusually active in its support, and is not restrained by any difficulty in finding a scientific justification for the law. The enactment and enforcement of the law are prompted by a tender sympathy for the dumb brutes, who while serving human ends are being subjected to cruelty. These statutes are designed, as the language of the statutes expressly indicates, for the prevention of cruelty to animals. Whose rights are protected by the enactment? Those of the animals? Are animals, other than human beings, recognized as the subjects of rights? Cruelty to animals might be claimed as an offense against public morality and the public sense of mercy. But that is in the nature of an afterthought, suggested as an escape from the logical dilemma, with which one is otherwise confronted in the consideration of these laws. Whatever may be said to the contrary, in the enactment of these laws, there is an unconscious, if not admitted, recognition of legal rights in the dumb animals, who are subjected to man’s dominion. They are by such legislation placed in the same legal relation to the freeman as the slave was in the days of slavery. Both are the property of the freeman; the master’s power of control was limited only by just such laws, as the one now under consideration, which were designed to prevent cruelty in their treatment. It is the torture to the animal that is prohibited, wherever it was done.1 If the law was considered and justified merely as the prohibition of an offense against the public sense of mercy, and involved no recognition of rights in the dumb animals, the operation of the law would have to be confined to public acts of cruelty, such as unmerciful beating on the streets and other thoroughfares. But it is plain that the ordinary law for the prevention of cruelty to animals is broken as much by cruel treatment in the stable as in the public highway; whether done in the presence of a large assembly, as in the cock-pit, or with no others present than the person whose anger or pure maliciousness induces the act of cruelty. The animals so protected must be recognized as subjects of legal rights. And why should they not be so recognized? Is it not self-conceit for man to claim that he alone, of all God’s creatures, is the possessor of inalienable rights?

The powers of these societies for the prevention of cruelty to animals are not limited to the prevention, and the prosecution of persons guilty, of acts of cruelty towards the dumb animals. They are, likewise, authorized to apprehend disabled animals, and, if they are incurable, to destroy them in the most expeditious and the least painful manner. Here, as elsewhere, wherever public officers are authorized for various reasons to kill animals belonging to private individuals, the agent for the society for the prevention of cruelty to animals is authorized to kill hopelessly disabled animals, without the previous consent of, or notice to, the owner.2

The medical profession has frequently been assailed by these societies and by private individuals, for their practice of vivisection. Anti-vivisection societies have been formed in England and in this country for the purpose of securing laws for the prohibition of vivisection; so far, I believe, without success. The constitutional question, which would seem to be involved in such proposed prohibitory legislation, is not difficult to solve and answer. The criminal or immoral element in acts of cruelty, is not the infliction of pain, but the infliction of pain without just cause or excuse. When a steer is knocked in the head, and his throat cut, in order that he may be converted into beef for human consumption, pain is inflicted; but it is not a wrongful act of cruelty, either in the domain of law or of ethics; because the motive of the act, viz.: provision for the sustenance of a more valuable human life, being held by everyone, but vegetarians, to be both just and laudable, justifies the infliction of the pain and the taking of the animal’s life. A butcher is not to be classified in this respect with the driver who in a fit of passion knocks his horse in the head, because it cannot draw the overload which has been put in the cart. According to prevalent public opinion, the butcher does praiseworthy, or at least, an unblameworthy act, when he knocks the steer on the head; while the driver deserves the condemnation of the community, and the punishment provided by law, when he inflicts the same pain upon his overloaded horse. The element, which differentiates the two cases, is the motive with which the blow has in the two cases been given.

The same principle of differentiation is applicable to, and should alone determine, the right or wrong of vivisection. The boy, who tortures a cat by tying a tin can to its tail, cannot be judged by the same norm, which determines or should determine the moral character of an original investigator who flays a live cat or rabbit, in the pursuit of scientific knowledge, which, when gained and thoroughly established by such investigations which can alone be pursued with the aid of vivisection, will promote the health and happiness of the human race. The boy ought to be spanked; the physician, praised and commended.

Regulation of the practice of vivisection is profoundly different from its prohibition. Laws, which permitted vivisection, wherever its practice tended to promote the welfare of the human race by the extension of medical and biological knowledge, and prevented and punished resort to the practice, whenever it was pursued by laymen for the gratification of a love of cruelty or an idle curiosity, would be absolutely free from constitutional objection; and would be in perfect harmony with the ordinary laws for the prevention of cruelty to animals.

[1]See State v. Pugh, 15 Mo. 509.

[2]King v. Hayes (Me.), 13 A. 882.