The American Historian

“The Arm of the Law”: Anticruelty Organizations and Statebuilding in Gilded Age America

Susan J. Pearson

In 1866 Henry Bergh, a wealthy resident of New York City, founded the American Society for the Prevention of Cruelty to Animals (ASPCA). Modeled after England’s Royal SPCA, Bergh’s was the first animal protection organization in the United States. Seven years later, the ASPCA rescued a little girl, Mary Ellen Wilson, who was a victim of abuse in her home. According to Jacob Riis, who was then a reporter for the New York Herald, Bergh declared that “the child is an animal. If there is no justice for it as a human being, it shall at least have the rights of the cur in the street.” After rescuing Mary Ellen, Bergh and his friend Elbridge Gerry formed the Society for the Prevention of Cruelty to Children (SPCC), the first organization of its kind in the world.[1]
 
Efforts to protect children and animals from abuse and neglect spread rapidly. By 1908 there were 354 active anticruelty organizations in the United States. Of these, 185 were humane, or dual, societies; 104 were exclusively animal societies; and 45 were dedicated solely to child protection. Most of the “dual” organizations—those that protected both animals and children—called themselves humane societies rather than either SPCAs or SPCCs. In 1877 the American Humane Association was formed as the national organization for both animal and child protection. It still exists today.[2]
 
Historians, including myself, often explain the emergence of animal and child protection in terms of changing sensibilities—as part of the transatlantic rise of a humanitarian ideal in the late-eighteenth and nineteenth centuries. In this telling, philosophers, theologians, social theorists, and reformers began to regard sympathy as a natural human response to the suffering of other beings, and they came to see pain as a preventable evil, not as an inevitable part of God’s plan for his creatures or a just punishment for original sin. Such assumptions found expression in campaigns to reform prisons, end capital punishment, abolish slavery, eliminate corporal punishment, promote temperance (since alcohol was associated with domestic violence), find ways to lessen the pain of surgery and childbirth, and, of course, the creation of animal and child protection organizations.[3]
But animal and child protection organizations did more than help spread humanitarianism. They were part of a vanguard that was transforming ideology, laws, and institutions in ways that offered more state protection to what they called “the rights of the defenseless.” The spread of animal and child protection is, then, as much a story about changes in the law and the reach of the state as it is about changes in sensibility.
 
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When Henry Bergh founded the ASPCA, his goal was not simply to convince people to be nice to animals. Instead, he intended both to create new laws to protect animals and to engage in law enforcement. Bergh petitioned the New York legislature and secured a law that criminalized cruelty to animals and deputized the ASPCA to enforce the provisions of the law. Under the common law inherited from England, states did not protect animals from cruel treatment. A person who tortured or killed his neighbor’s cow might be hauled before a magistrate and charged with malicious mischief; a person who beat a horse in the town square might be fined for public nuisance. But in such cases, the crime was against property or the public peace, not the animal itself. A person could not be charged with violence towards his own animal or for violence that did not disturb others. In this respect, animals were treated like other household dependents under the legal regime of coverture—they were unable to be directly harmed and were without legal personhood. New York’s 1866 legislation was different. It offered direct protections to animals—cruelty was a crime whether a person owned the animal or not and whether it took place in public or private.
 
Like anticruelty organizations, this new type of positive legislation spread far and wide. By 1900, forty-seven states had similar laws on the books. In 1888 Charles Barnard, an attorney for the Massachusetts SPCA, wrote that such laws “differ from earlier enactments, and from the common law regarding this class of offences, in proceeding more clearly upon the principle that animals have rights,” by which he meant that the law was concerned principally with animal suffering rather than with the protection of property or the public order. The point of anticruelty laws differed from the indirect protections of the common law.[4]
 
The legal innovations of animal protection statutes were accompanied by institutional innovations that extended the reach of the state. As Elbridge Gerry (the ASPCA’s first attorney and later president of the first SPCC) put it, the humane society served as “the hand of the Law, attached to the arm of the Law, created for the enforcement of the Law.” Beginning with Bergh’s ASPCA in New York, animal and child protection agencies were delegated police powers by the state. “The objects of this society,” declared the ASPCA bylaws, are “to enforce all laws which are now, or may hereafter be, enacted for the protection of animals; and to secure by lawful means the arrest, conviction and punishment of all persons violating such laws.”[5]
 
The delegation of police powers varied according to an organization’s charter and the statutes governing its operation. Most states, though, followed the same arrangement: men who had been chosen as agents by a duly incorporated humane organization applied to the local magistrate, police, or sheriff, who awarded the powers individually to applicants. While applicants could be rejected on any number of grounds, once an agent was given police powers, they could not be taken away so long as the agent remained in the employ of the humane society.
 
 
 
Ordinary people living in areas with active anticruelty societies quickly realized that these organizations had real power. Most of the cases that humane society officers investigated were brought to them rather than discovered out on the beat. Wives complained about their husbands and expected remediation; mothers complained of unruly children; neighbors threated to (and did) call “the Cruelty” on community members who acted out of bounds. Like constables, police, and justices of the peace, anticruelty organizations were recognized as capable of using the force of law to promote social order.[6]
 
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In turning to the law to achieve social change, humane societies in many ways typified the transformation of reform strategies in the wake of the Civil War. Before the war many reformers favored “moral suasion,” or moral reform. But in the years following the war, many reformers abandoned a voluntaristic approach to change; they replaced the moral reform of the individual conscience with the coercive power of the law, and they sought to create new rules and to harness the power of the state rather than to reawaken the dormant moral sense.[7]
 
Founded on the heels of the Civil War, American anticruelty societies in many respects conformed to this narrative of postbellum reform. Anticruelty society leaders believed in using a law enforcement model to achieve their goals, were not afraid to harness the power of the state, tried to increase the reach of state power through new legislation, and favored decisive action over mere sentiment;, power over persuasion. As the letterhead of the Mohawk and Hudson River Humane Society trumpeted, the goal of anticruelty organizations was the “protection of child and beast by authority of the law.” Their propensity to cloak themselves in quasi-police uniforms and arrest offenders suggests a willingness to succeed through intimidation, a declining faith in the innate goodness of man, and a pessimistic view of the human capacity for change. Indeed, announced one reformer, the work of the humane society does not “alone depend on appeals to the better nature of men.”[8]
 
Humane societies, however, regarded the law as a transformative, not just a punitive, force. Anticruelty organizations eponymously styled themselves as preventative bodies. They believed that their ability to arrest enabled them, ironically, to forgo prosecution in most of the cases that they encountered. Anticruelty activists hoped that the existence of legislation—and public knowledge of their enforcement powers—would be enough to stop cruelty before it happened. But in the event that prosecution became necessary, they hoped that it too would serve an educative function. In choosing which cases to prosecute, one agent advised his fellows to “select those whose example will intimidate the greatest number of others and do the most towards preventing similar cruelties thereafter.”[9]
 
Most humane societies used their legal power to initiate a range of interventions that fell short of prosecution. In so doing, they began to reshape the law from a tool of punishment into a tool of reform. In the majority of cases, anticruelty agents tried to use the weight of their legal authority to reform individuals rather than to legally punish them. Internal case files of humane societies provide the opportunity to view this more therapeutic approach to law in action. In many ways, the children’s case files read like those of an organization dedicated to social work. They are filled less with stories of cruelty—as in physical abuse—and much more with social problems such as truancy, teen pregnancy, juvenile delinquency, family dissolution, desertion, and nonsupport. Most cases did not end in court. Instead, agents wrote letters, visited families, interviewed neighbors, and contacted local social service agencies. While rates of prosecution ranged across humane societies and over time, the New York SPCC had the highest rate of cases in court—around 25 percent of the total cases it would investigate in a given year. Humane societies attempted to make the law into a flexible tool, one capable of responding to particular persons and their circumstances.
In their approach to protecting animals and children through legal reform and law enforcement, anticruelty organizations stood at the cusp between old and new approaches to law and governance in the United States. As legal and political historians have noted, law was the dominant instrument of governance through the end of the nineteenth century. Though the federal government was weak compared to its Western European counterparts, America was hardly a stateless society. Rather, most governance was conducted on the local level through what Stephen Skowronek has called “the state of courts and parties.” While political parties greased the wheels of democratic political participation, nineteenth-century courts made most substantive policy decisions. This was true not only for the rules governing property, but also for the reshaping of domestic relations. Though some important changes in the status of dependents—such as married women’s property acts—were the result of legislative action, many others were “judge-made law.” The development of the “best interests of the child” doctrine is perhaps the primary example of how judges, rather than legislatures, acted to shape social norms and practices for much of the nineteenth century.[10]
 
While anticruelty organizations’ willingness to use legislation and law enforcement to produce change represented a departure from antebellum reform tactics, by relying on law as a mode of governance, they operated within the bounds of the existing state. They assumed that law was the primary mechanism for regulating social order and they relied on courts, or the possibility of legal action, to make that order function. But anticruelty organizations also helped foster a new approach to the law. Rather than relying on judges to make new law, anticruelty organizations lobbied for new legislation, transferring governance to the legislature and making courts into the interpreters of statutes rather than the creators of policy. This changed role for the courts was particularly pronounced where animal protection was involved since, unlike with domestic relations, there was virtually no common-law precedent for such laws.
 
By creating new laws and new institutions tasked with enforcing those laws, anticruelty organizations amplified the power and reach of the late-nineteenth century state. In some states—Colorado, Wyoming, Minnesota, and Texas—humane societies were even made into official state bureaus. In 1900 a Colorado Humane Society (CHS) handbook laid out the case for the transformation of the humane society into a state agency. Because they engaged in law enforcement, the society reasoned that its agents performed a duty not only on behalf of animals and children, but also on behalf of the entire state. In its own view, the CHS helped the state of Colorado fulfill the letter of its laws and hence the spirit of its people. As such, the CHS pamphlet argued that its activities “should be supported by general taxation, as the other official agencies of law and order are.” Addressing colleagues at the American Humane
Association’s annual meeting, G. H. Thomson of the CHS concluded that his organization’s good work proved that it was “an indispensable feature in the social machinery of the State.” The ability of the organization’s agents to accomplish their investigations was, he claimed, a result of their identification with the “resistless power of the State back of all.”[11]
 
As humanitarians like Colorado’s Thomson saw it, their organizations not only employed the power of the state, but they also played an active role in what historians would subsequently regard as a transformation in the role of the state. Initially associated with a monopoly of force in the early modern period, the legitimacy of modern liberal governments slowly came to rest instead on the ability to relieve rather than inflict suffering and to rehabilitate rather than to wound. E. P. Bradstreet, an agent of the Cincinnati, Ohio, Humane Society described this process in an 1890 talk entitled “The Power of the State to Protect against Cruelty.” For centuries, he claimed, rulers had abused their powers, inflicting tyranny and abuse on their own populations. Somehow, Bradstreet said, “it never occurred [to them] that one of the prime duties of that central power we call ‘the State’ was to care for the needy, weak, and unprotected, to cover the head of an abused subject with the shield of governmental power.” After considering theorists from Aristotle and Plato to Montesquieu, Bradstreet asserted that all venerable theoreticians had reached the “irresistible” conclusion that government was permitted, even required, “to legislate for man’s best good, and therefore against cruelty to man and beast.” The task for humane activists, then, was to force governments into adopting their duty to, in Bradsteet’s words, “smite as with a rod of iron the arm upraised against helpless weakness.[12]
 
The idea that it was the state’s role to cure social problems—to create specialized bodies of law and agencies tasked with enforcement and regulation—is a hallmark not of the supposedly laissez-faire Gilded Age, when anticruelty organizations blossomed, but instead of the Progressive era, which historians more widely associate with the growth of the state and a pragmatic approach to law. And yet in their own way, the activists of the late-nineteenth century animal and child protection organizations sought new ways to reach beyond the bounds of common law and the traditional centers of power in the state. To regard animal and child protection organizations only in terms of the ways that they promoted new sensibilities about the suffering of dependents is to miss how their legal and institutional innovations combined public and private power to make the state cognizant of the “rights of the defenseless.” Moreover, the legal strategies of anticruelty organizations remind us that humanitarianism is a legal regime as much as an ideal, and that its success depends on power as much as goodwill.[13]

 

Author

Susan J. Pearson is interested in everyday forms of governance. She is the author of The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America (2011) and is currently at work on a book about the spread of compulsory, universal birth registration in the United States. Professor Pearson teaches courses on the history of childhood, women’s history, and U.S. cultural and intellectual history at Northwestern University.

Notes

[1]Jacob A. Riis, The Children of the Poor (1892), 142–43.

[2]Roswell C. McCrea, The Humane Movement: A Descriptive Survey (1910), 15.

[3]For works that link animal protection to new ideas about pain and suffering, see: James Turner, Reckoning with the Beast: Animals, Pain, and Humanity in the Victorian Mind (1980); Diane L. Beers, For the Prevention of Cruelty: The History and Legacy of American Rights Activism in the United States (2006); and Janet M. Davis, The Gospel of Kindness: Animal Welfare & the Making of Modern America (2016). Histories of child protection are less consistent on this point. See, for example: Sherri Broder, Tramps, Unfit Mothers, and Neglected Children: Negotiating Family in Late Nineteenth-Century Philadelphia (2002). For a history of both animal and child protection that links both to new ideas about pain and suffering, see: Susan J. Pearson, The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America (2011).

[4]Charles A. Barnard, Forms for Complaints, under Chapter 207 of the Public Statutes of Massachusetts, Relating to the Prevention of Cruelty to Animals, with Sundry Directions for Pleading (1888), 10.

[5]New York Society for the Prevention of Cruelty to Children, Fifteenth Annual Report, December 31, 1889 (1890), 7; New York Society for the Prevention of Cruelty to Children, Twenty-Fourth Annual Report, December 31, 1898 (1899), 7; American Society for the Prevention of Cruelty to Animals, Fifty-Fifth Annual Report (1920), 61; American Society for the Prevention of Cruelty to Animals, Thirty-Eighth Annual Report (1904), 158–59.

[6]On community use of Societies for the Prevention of Cruelty to Animals (SPCA)/Societies for the Prevention of Cruelty to Children (SPCC), see: Pearson, Rights of the Defenseless; Robertson, Crimes Against Children; Broder, Tramps, Unfit Mothers, and Neglected Children; and Gordon, Heroes of their Own Lives.

[7]George M. Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union (1965); John L. Thomas, “Romantic Reform in America, 1815–1865,” American Quarterly, 17 (1965), 656–81; Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920 (2002).

[8]William O. Stillman to [unknown], undated [c. 1905], folder 1, box 35, Mpls HS Papers; American Humane Association, Report of the Proceedings of the Twenty-First Annual Convention of the American Humane Association (1897), 31; “The Illinois Humane Society,” Humane Journal, 13 (1885), 118.

[9]Ferd W. Peck, “Prosecution of Offenders,” Humane Journal, 13 (1885), 166.

[10]Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1977–1920 (1982), 19–29; David S. Tanenhaus, Juvenile Justice in the Making (2004), 59; Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America (1985); Peter W. Bardaglio, Reconstructing the Household: Families, Sex, & the Law in the Nineteenth-Century South (1995), 137–213.

[11]Colorado Humane Society, Handbook of the Colorado Humane Society (1900), 3–4.

[12]Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (1977); Cynthia Halpern, Suffering, Politics, Power: A Genealogy in Modern Political Theory (2002); Karl Shoemaker, “The Problem of Pain in Punishment: Historical Perspectives,” in Pain, Death, and the Law, ed. Austin Sarat (2001), 15–41; Austin Sarat, “Killing Me Softly: Capital Punishment and Technologies for Taking Life,” in Pain, Death, and the Law, 43–70; American Humane Association, Report of the Proceedings, Fourteenth Annual Meeting (n.p.) 40–44.

[13]Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (2003). Legal historians and scholars of American political development have pointed out that the blurring of lines between public and private authority is common in the United States. Almost none, however, have examined how anticruelty organizations functioned in this legal and administrative landscape. See, for example: William J. Novak, “The Myth of the ‘Weak’ American State,” American Historical Review, 113 (2008), 752–72. For a suggestive account of the expansion of public authority through SPCCs, see Michael Grossberg, “‘A Protected Childhood’: The Emergence of Child Protection in America,” in American Public Life and the Historical Imagination, ed. Wendy Gamber, Michael Grossman, and Hendrik Hartog (2003), 213–39. On SPCAs , see Susan J. Pearson and Kimberly K. Smith, “Building the Animal Welfare State,” in Statebuilding from the Margins: Between Reconstruction and the New Deal, ed. Carol Nackenoff and Julie Novkov (2014), 118–39.