In 1822, the British Parliament enacted “An Act to prevent the cruel and improper Treatment of Cattle,” generally recognized as the first statute of any nation specifically targeting animal cruelty. Richard Martin, a colorful and eloquent member of the House of Commons from Galway, was the legislation’s principal author and champion and after the law’s enactment worked tirelessly to ensure its enforcement. Thus, this landmark statute is appropriately known as “Martin’s Act.” Martin’s Act made it a crime, subject to a penalty of up to five pounds or three months in prison, for any person to “wantonly and cruelly beat, abuse or ill treat” various types of livestock, including horses, cattle, and sheep. In one simple sentence, the Act established an important new norm governing the relationship of human to animals.
The substance of Martin’s Act has been thoroughly examined, with a deserved focus on the Act’s departure from the traditional view of animals as property, subject to their owner’s absolute power. The Act criminalized behavior that previously had been considered well within the rights of the animal owner. Nevertheless, the new legal norm would have become a mere footnote in history had it not been for the immediate, vigorous, and sustained enforcement of its provisions. Remarkably, the enforcement of Martin’s Act crimes occurred largely through the efforts of private parties rather than public prosecutors.
The Act enabled private enforcement by specifically authorizing the magistrate to issue a summons or warrant to offenders upon the sworn complaint of any person. Private enforcement was crucial because the abused animals could not speak for themselves and the animals’ owner (or the owner’s servant) was often the abuser. At the time Martin’s Act became law, English crime victims typically carried out their own prosecutions and only the most egregious felonies were prosecuted by the Crown. In animal cruelty cases, however, victims could not prosecute or even lodge a complaint; instead, prosecution would rest with third parties who had only a general moral interest in halting animal abuse.
Martin himself brought many of the early prosecutions under his newly minted Act, and frequently patrolled the streets of London, on the watch for animal mistreatment. In 1824, he and other animal protection activists formed an organization - the Society for the Prevention of Cruelty to Animals - to take on the task of investigating and prosecuting abuse. The Society began slowly, hiring a few inspectors to frequent the London livestock markets and bring prosecutions. In the 1830s, it brought a total of 1357 prosecutions, mostly in London. In each subsequent decade, the Society added inspectors and increased prosecutions, so that by the 1890s it had a nationwide force of 120 inspectors and during that decade brought an astounding 71,657 prosecutions.
Nearly two centuries after this beginning, the Society has retained its important role in the prosecution of animal abuse crimes, which now encompass cruelty to pets as well as livestock. In 2010, the Royal Society for the Prevention of Cruelty to Animals (RSPCA or “the Society”), which is self-described as “the largest non-governmental law enforcement agency in England and Wales,” fielded over a million telephone calls, investigated almost 160,000 complaints of animal cruelty, and secured convictions of 1086 offenders on 2441 charges.
Although the RSPCA (and in Scotland, the SSPCA) is now incorporated by statute, it has no special authority beyond that of any other citizen; yet, it has become and remains the de facto prosecutorial authority for many animal cruelty cases. Thus, we have “something of a constitutional novelty for a significant body of law to be largely enforced through the efforts of a charitable organization, funded entirely by voluntary contributions.”
In the United States, private prosecution of animal abuse began in New York City in 1866, after the American Society for the Prevention of Cruelty to Animals (ASPCA) was organized by Henry Bergh, using the RSPCA as his model. In some ways, the ASPCA enjoyed even greater powers than its British counterpart. For example, the New York legislature gave the society a right to issue its own arrest warrants in certain cases, a “truly extraordinary” delegation of criminal enforcement authority. Ernst Freund noted that this “partial reliance upon voluntary associations for the enforcement of the law” was a “peculiar feature” of anti-cruelty legislation in the United States. Several other states also gave enforcement powers to private humane groups during the last decades of the nineteenth century and early part of the twentieth century. As historian Susan Pearson has noted, the deputizing of animal welfare groups in the Gilded Age “expanded state power through private means.” Many states continue to allow private enforcement of animal cruelty statutes, although in most states the power does not appear to be frequently used. Although American private prosecutions of animal abuse cases never reached the prominence of RSPCA efforts, evidence shows that it arose from similar causes and suffered from similar disadvantages. This Article, however, will focus on the British system of private enforcement, which was a precursor to the American approach and had a longer history, with some comparative references to the American experience.
Reliance on private prosecution of crimes was not unusual in early nineteenth-century Britain. The “prosecuting society” model had become well-established in Britain by the time the RSPCA began its activities. As early as the seventeenth century, interest groups formed to pool the resources necessary to prosecute criminal activity, in order to fill the vacuum created by a small or non-existent constabulary. In most cases, these prosecuting societies aimed to protect the self-interest of their members - such as the groups of shop-owners organized by Henry and John Fielding to prosecute thievery. Many of the societies were local, formed by groups of town citizens to provide adequate prosecution of crimes thought necessary to ensure public safety. In other cases, the groups formed to prosecute the type of moral offenses that public prosecutors were unable or unwilling to take on.
None of these prosecuting societies, however, enjoyed the extensive, widespread, sustained success of the RSPCA. Moreover, at least on the surface, the RSPCA differed from these previous societies in terms of its primary motivations, which were altruistic rather than self-interested. This society was formed, not to promote the security of its members, but rather to protect those who could not protect themselves. This difference may be overstated; below the surface, RSPCA prosecutions may have served very similar moral improvement and social control motives of the vice societies and thereby, at least indirectly, may have served the security interests of the Society’s members. Nevertheless, the Society’s stated goal of protecting the powerless - i.e., animals - has more in common with the altruistic societies formed to protect abused children. In fact, in the United States, anti-cruelty groups protecting animals were closely linked to those protecting children.
Although the Society engaged in educational campaigns and pursued Parliamentary objectives, vigorous prosecution of the law was an essential part of the organization’s strategy from the beginning. As Pearson notes, with regard to American anti-cruelty societies, the ability to prosecute made the educational efforts more effective, coupled as they were with the warning of prosecution in the future. The prosecutions not only stopped the particular abuser accused of the crime, they also provided a more general deterrent and helped to inculcate the public, the police force, and the judiciary with the new norm of behavior toward animals. In addition, the prosecutions helped define the contours of permissible treatment of animals, and in some cases expanded the accepted definition of animal cruelty.
The RSPCA’s extensive campaign of prosecution provides modern reformers an opportunity to explore the implications of relying largely on private parties to enforce animal abuse crimes. In most criminal contexts, the victim sets the enforcement machinery in motion by complaining to the police and pressing the public prosecutor to pursue the case. In the case of powerless victims such as animals, however, that system does not work. Not surprisingly, animal welfare laws have suffered from low public prosecution rates, which one critic has attributed to “differences in the values people place on prosecution, the costs involved in investigating cases, and the difficulties of proving the criminal violations.” Private enforcement could overcome at least some of these obstacles, resulting in more vigorous enforcement of cruelty laws. Thus, analyzing the advantages and disadvantages of private enforcement, including its particular historical context, could help us assess whether a similar method would be appropriate and useful in enforcing animal cruelty laws today.
This Article begins by setting out the details of Martin’s Act and subsequent amendments that expanded its reach. The Article then describes the RSPCA’s extensive campaign of animal cruelty prosecution and explores the historical conditions, both societal and legal, that motivated and enabled it. The Article places the activities of this prosecuting society in the larger context of the nineteenth century’s changing views of the role of criminal law and how it should be enforced. The Article then attempts to assess the efficacy of private prosecution in the context of animal abuse, in comparison to other types of crime. The Article concludes that private prosecution enabled the Society to more quickly inculcate the new norm of animal care and may have been necessary to ensure the anti-cruelty law’s effectiveness. Nevertheless, the private enforcement mechanism also had significant drawbacks that could never be completely eliminated. As modern animal welfare advocates search for the optimal methods of animal welfare reform, this remarkable history should prove instructive.