BRADY v MCARDLE. 1884. Cruelty to animals. wantonly" is omitted from the latter Act. There are no words of limitation in sect. 2 of the 12 & 13 Vict. c. 92, and the word 'cruelly" in that section applies only to the word "beat." We are not at liberty to inflict torture on any animal merely for profit, nor for scientific purposes, and that is the principle of the Act. The Vivisection Act (39 & 40 Vict. c. 57) was required to enable scientific men to do what without it would have been illegal. The point is not that the abuse of the animal is unnecessary, but that the law says you shall not make a profit out of the torture of any animal. The question of castration is outside the Act; it is both necessary and reasonable, and therefore legal, being justifiable. The question is, Have these animals been tortured? They undeniably have been, and there is no justification or excuse here for the torture on grounds of necessity or reasonableness. Wood fastened on their horns would effectually prevent the animals from horning one another, and, besides, there should be no necessity to keep them in close yards. Cutting cocks' combs is an offence against the statute, though it is said to increase their value: (Murphy v. Manning, 2 Ex. Div. 307.) (Counsel also referred to Budge v. Parsons, 3 B. & S. 382; and Powell v. Knights, 26 W. R. 721.) John Ross and J. Gibson, Q.C. for the respondent.-The question whether these acts amount to cruelty is a question of fact, and has been decided by the court below, and is not subject to review. The words of the section relied on are, "cruelly beat, abuse, ill-treat, or torture." The word "cruelly" is the governing word in that clause. Cruelty is a relative term, and what is cruelty under one state of circumstances is not cruelty under another. The difficulty is to find out what is cruelty. There can be no infliction of pain without cruelty. The word "cruelty implies something of motive. Animals are not kept by the owners from motives of pure benevolence, and the owners have the right to make them more useful by inflicting some pain on them. Any pain that is inflicted for a wanton and unreasonable purpose is cruelty, and any pain that is inflicted for a reasonable and lawful purpose is not cruelty. The reasonableness of the object for which pain is inflicted cannot be excluded, and the only question is whether dishorning is a reasonable practice. The evidence is that the animals thrive better after the operation, and it prevents them from horning, and so inflicting great pain and injury on each other in close yards and on steamers. It is a reasonable thing to prevent them from so injuring one another. Bulls are brought through the streets with copper rings, which is done for mere convenience, as they could be conveyed by other means. The pain inflicted by dishorning is momentary, and does the animals no harm whatever. The fact that the price of the animals is increased shows the great utility of this practice. This practice has been in existence for a great number of years without any attempt being made to stop it, and it is for the interest of the community that it should continue. The meaning of the word "cruelty," as given by Webster, is any act of a human being which inflicts unnecessary pain. There are two matters to be considered-first, the amount of pain that is caused, and, secondly, the object to be attained. This practice is not likely to do any injury to the life of the animal, for, if so, it would not be continued. It would cause much greater pain to have the horn broken off, as frequently happens when it is left on. If the argument of the other side is right, it would not have been necessary to pass the Vivisection Act (39 & 40 Vict. c. 57). If this matter is to be dealt with at all it should be by the Legislature. Webb, Q.C. in reply.-This question has been decided in England (but the case is not reported in the authorised reports), and the practice has been practically put a stop to. Torture of animals should not be allowed merely for the purposes of luxury, caprice, or amusement. We are not at liberty to inflict torture upon any animal merely for the purpose of profit, no matter how great. DowSE, B.-This is a case stated for the opinion of the Exchequer Division, at the instance of the prosecutor, who is Secretary to the Society for the Prevention of Cruelty to Animals. The magistrate has set out the facts fully, and I think it might be well to refer to them not at any great length. The prosecution is brought under the 12 & 13 Vict. c. 92, s. 2, which provides: "Be it enacted that if any person shall from and after the passing of this Act cruelly beat, ill-treat, over-drive, abuse, or torture, or cause or procure to be cruelly beaten, ill-treated, overdriven, abused, or tortured, any animal, every such offender shall for every such offence forfeit and pay a penalty not exceeding five pounds." In the previous Act, 5 & 6 Will. 4, c. 59, the word wantonly" was added, but in the more recent statute this word has been omitted. The omission of the word is significant. It shows that the Legislature did not intend that the presence of calculation, deliberation, and motive in the minds of the perpetrators of the act should condone the cruelty of their conduct. It is upon the clause of the statute that I have just cited this prosecution is brought, and upon no other. The act complained of here is the cutting off in a cruel manner the horns of cattle, and the cutting them off in such a way as to leave no signs apparent that there were ever horns growing on the head. Of course a skilful person examining the cattle would know what had been done, but to an ordinary spectator it would appear that there never had been any horns on the beasts at all. [His Lordship referred to the evidence in detail, as contained in the case stated, and particularly to that of the veterinary surgeon, and proceeded to say:] It was not contended that these acts were done for the sake of the cattle. I do not think it could have been so contended. The magistrate, having heard the case, came to the conclusion that the acts done did not constitute cruelty within the statute, and refused to convict. The question he puts is whether he was wrong BRADY v. MCARDLE. 1884. Cruelty to animals. BRADY V. MCARDLE. 1884. Cruelty to animals. in point of law in dismissing the case, and whether he should have convicted the defendant upon the facts proved. As to the facts, there was substantially no controversy. The evidence was all the one way; and, although it might be argued that it was a question of fact that is submitted to us, the question as put to us is really one of law, viz., whether the admitted facts amount to cruelty within the statute. It has been contended that the word "cruelly " governs all the other words in the section. I do not think it is necessary for me to give a specific opinion as to that. Mr. Gibson and Mr. Ross have argued that "cruelly "runs through the whole sentence; that it means cruelly beat, cruelly ill-treat, cruelly over-drive, cruelly abuse, and cruelly torture. Dr. Webb and Mr. Brady say that "cruelly" applies only to the word "beat;" that the word "beat" requires the qualification contained in the adverb "cruelly" to bring it within the Act; that abuse and torture ex vi termini do not require the word; and that the acts here complained of are abuse and torture, and nothing less. I am free to admit that there is a great deal to be said on both sides, but in the cases cited "cruelly" seems to be applied to all the words. In any event, it seems taken for granted that the offence intended to be dealt with is cruelty. In Budge v. Parsons (3 B. & S. 382) it was unnecessary to give any judicial decision on this point. Wightman, J., said it was the unnecessary abuse of the animal that constituted the offence, and he appeared to think that "cruelly" governed the whole of the words in the clause. I do not think that it is of much importance to decide whether the adverb governs the whole of the words or not, for the offence is committed if we are of opinion that the cattle were abused and tortured. It is impossible, if we so think, to argue that these cattle were not treated cruelly, and made the subject of a direct act of cruelty, within the true meaning of the statute. I shall not come to the conclusion that the cattle were ill-treated, abused, and tortured unless I am prepared to decide that they were cruelly ill-treated, cruelly abused, and cruelly tortured. The word" torture" ex vi termini involves cruelty. This being so, the question arises, Are any limitations to be imposed on the words so interpreted, and is any justification or excuse to be successfully urged for the act? It is said that, according to the general policy of the law, nothing can excuse torture, or abuse, or illtreatment. I am not inclined to adopt this view in construing the statute. We must have regard to the use to be made of cattle, and to the ordinary mode of treating them, and to the ordinary conditions, affairs, and circumstances of life. I am inclined to go with Dr. Webb in his argument that the lower animals are not to be entirely subordinated to man. If men have their rights in respect of these animals they also have their duties, and we have it on the highest authority that "a righteous man regardeth the life of his beast," and, if its life, why not what make its life endurable? Most people-at least those not entirely given over to selfishness-are agreed that the lower animals should be BRADY v. 1884. Cruelty to animals. taken due care of, treated with kindness, and guarded against the wanton or purposeless abuse of man. Moral, religious, MCARDLE. humane, or sentimental grounds are not always sufficient to prevent cruel acts, and therefore, in the reigns of William IV. and of Victoria, Acts were passed to restrain the power of human beings, and to prevent them from dealing with "dumb-driven cattle in such a manner as to impose upon them unnecessary and unreasonable pain. In considering this case we are not much assisted by authority. In addition to the decision already mentioned, Murphy v. Manning (2 Ex. Div. 307) has been cited. The act there complained of was the cutting the comb off a cock, and it was held an offence within the statute. The excuses for that act were held to be unreasonable, and so far as the court laid down any principles we must apply them to this case. Kelly, C.B. says in his judgment, "Taking off the comb makes them more fit for fighting. It is cruelty, and an abuse and illtreatment"—the very words in the Act-" As it does not better fit the animal for the use of man, or for any other lawful or proper purpose, it is wholly unjustifiable, and is a criminal act, which comes within the statute." And Cleasby, B. says: "Whenever the purpose for which the act is done is to make the animal more serviceable for the use of man, the statute ought not to be held to apply." As was said by Wightman, J. in Budge v. Parsons (3 B. & S. 382), "the cruelty intended by the statute is the unnecessary abuse of the animal. Neither cock-fighting nor the chance of a prize at an exhibition is such a purpose as prevents the word 'cruel' as used in the Act from applying." I think this case affords us some, though not much, assistance. I cannot hold that what is here complained of better fits or makes the animal more serviceable for the use of man. I think the acts were unreasonable and unnecessary, and are consequently forbidden by law. The acts were done for convenience, it is said. Convenience of whom? Of the man who chooses to feed his cattle in a narrow yard, and in a particular manner, and in a confined place. In my judgment, the acts cannot be said to be done to make the animal more serviceable for the use of man. They were done for the convenience of particular individuals, and for their contingent profit, and under special conditions, and under circumstances of limited and by no means general application. There are some markets in England where beasts are preferred without horns; but if there were other markets where, that they might be more easily fattened, they were preferred without eyes, would that justify or excuse any person in depriving the animals of their eyes? But the question is, where can we draw the line, for the line must be drawn somewhere. Particular convenience, or particular profit in exceptional instances, cannot be the test. In some markets horned cattle may be preferred, in some unhorned. Some breeders or feeders of cattle may like the one, and some the other. If people in England or Scotland want to have hornless animals they must dishorn them for themselves, and the BRADY v. MCARDLE. 1884. Cruelty to animals. English or Scottish authorities must apply the law as we are going to do now in Ireland. It is a clear rule to lay down, as I do now, that there is a limitation to the power of owners of beasts, and that limitation is that the act done must not be unreasonable and unnecessary; and if it be so, and cruel in addition, that the offence is committed against which the statute was passed. I have gone further in favour of these improvers on the work of creation than Wightman, J., because he seemed to think that the act was illegal when it was unnecessary-I add to this, and unreasonable. Nobody can contend that it was absolutely necessary to cut off these horns, and, in my view, it was eminently unreasonable. I shall decide that the act would not be within the statute if it were a reasonable and necessary act, and therefore I think a justification or excuse can always be urged if there are facts to support it. In my opinion, there are no such facts here. All the circumstances of the case ought to be considered in deciding whether the act is reasonable and necessary, and all the arguments that can be brought forward ought to be fully and fairly considered. Of course, our decision in this matter will be severely criticised; but we do not care about that. We shall do our duty, and must be prepared for criticism and worse if we in any way run counter to human selfishness; and we have done that in the most unequivocal manner in this case. I must act on the opinion I have formed. An act of this description is clearly within the statute. Once the cruel act is unreasonable and unnecessary-and, in my opinion, the act here is both one and the other-the prosecution ought to succeed. On the facts, as laid before us, the magistrate should have convicted. The case must, therefore, be sent back to him, with the opinion of the court that he was bound to convict, and, as this is a case of the first impression in this country, we shall give no costs of the argument. ANDREWS, J.-Upon the evidence, which has been so fully and carefully reported by the resident magistrate who stated the case, I am of opinion that the dishorning of the cattle in the manner proved constituted an offence within the 12 & 13 Vict. c. 92, s. 2. That the dishorning was not done wantonly, but for the purpose of convenience and profit, is not in itself a sufficient defence. It ought to be shown to be necessary or reasonable under all the circumstances. Even if there were no other means of effecting the same purposes, regard must be had to the nature of the act complained of, the manner in which it was done, and the amount of suffering thereby inflicted on the animals; and in this particular case the objects sought to be attained do not, in my opinion, justify the means which were used to accomplish them. It has not, however, been shown that a much less painful, if not a painless mode of effecting the same objects cannot be adopted, or that a much less painful mode of removing the horns, or a sufficient part of them, may not be resorted to. I offer no opinion on any state of facts differing in any material respect |