A Traitor to His Species

CHAPTER ONE

SOMETHING BOLD AND OUTRAGEOUS

THE VICTIMS OF the crime were mute, helpless to plead their cause even before they had been turned into soup. But the green turtles in the hold of Captain Nehemiah Calhoun’s boat had a champion in Henry Bergh, one human determined to stand up for their kind.

On a May morning in 1866, Bergh boarded the schooner Active, just arrived from Florida with a shipment of turtles for Manhattan’s Fulton Fish Market. Belowdecks, he found over a hundred large turtles stacked like living luggage. For weeks during their voyage north, the animals had been deprived of food and water. Worse still, the captain had flipped them upside down to immobilize them and had bound them together with a rope pierced through their flippers, creating wounds that still oozed after weeks at sea. In the turtles’ punctured limbs and glassy eyes, Bergh witnessed not only weeks of physical pain and deprivation but also “intellectual suffering.” He thought he saw tears falling from their eyes, dappling the deck below.¹

Only a month before, Bergh had founded the American Society for the Prevention of Cruelty to Animals in New York, an organization dedicated to ending humanity’s “gross ignorance, thoughtlessness, indifference, and wanton cruelty to… brute creation.” In this campaign, Bergh enjoyed the patronage of the mayor, the police chief, and scores of the city’s elite. Gathering this distinguished group in New York’s Clinton Hall on a stormy February night in 1866, Bergh had read them a manifesto that he considered a declaration of independence for brute creation. “The blood-red hand of cruelty shall no longer torture dumb beasts with impunity,” he announced. The cause was mercy, “a matter purely of conscience” that should unite all men and women of goodwill. Two dozen of New York’s leaders signed on to his declaration that night. Though Bergh proclaimed that this was “a moral question” that had “no perplexing side issues,” he would spend the next two decades discovering just how hard it was to untangle animal rights from human privileges.²

In other towns across the Northeast and Midwest, thousands of women and men would soon follow Bergh’s lead, founding their own anticruelty societies. But to friend and foe alike, he personified the movement, and the public hungered to know more about this man who took sides against his own species. “He has a tall, elegant figure,” one paper reported, “a high forehead, on which a single lock curls gracefully down in the Ciceronian style, while his otherwise classical features are modernized by a moustache and imperial. He has a melancholy air and a sad expression of the eyes, as if he were thinking constantly of the abuse of stage horses, the inhumanity to dogs, and the torture of animals to slaughter.”³

In fact, Henry Bergh was motivated not by an unusual love of animals but by a hatred of human cruelty. Fifty-three years old, he had come to this cause only recently. Heir to an industrial fortune, he had spent most of his career in a fruitless quest for literary fame. During a brief stint as a diplomat to Russia during the Civil War, Bergh had witnessed brutal treatment of horses by St. Petersburg teamsters that provoked in him something like a conversion experience. After visiting the leaders of England’s Royal Society for the Prevention of Cruelty to Animals, founded in 1824, he returned to the United States determined to establish a similar organization and to devote his life to the eradication of cruelty to animals.⁴

Urged on by his influential allies and an enthusiastic press, the state legislature soon granted Bergh a charter for his new American Society for the Prevention of Cruelty to Animals (ASPCA), then passed a law he had drafted, making it a crime to “maliciously kill, maim, wound, torture, or cruelly beat any horse, mule, ox, cattle, sheep or other animal.”⁵

Bergh’s law, amended and strengthened a year later, was not the nation’s first attempt to grant animals some legal protection against human abuse. Puritans in colonial Massachusetts prohibited “Tiranny or Crueltie towards any Bruite Creature which are usually kept for man’s use.” And before 1866, twenty states and territories had passed anticruelty laws, focusing on the protection of livestock. Because these laws were rarely enforced, Bergh crafted a much stronger enforcement mechanism. The statute empowered his ASPCA to appoint its own “agents,” badge-wearing officers who were authorized to intervene in acts of animal cruelty, to call on police to enforce the law, and even to make their own arrests. This proved to be one of the law’s most important innovations, empowering Bergh not only to plead for better behavior but also to demand it. This law had teeth.⁶

The new animal welfare law also covered a much wider range of creatures, not just those that some human claimed as household property. New York promised to defend “any living creature” from cruelty. As historian Susan Pearson puts it, the statute “made the crime consist more clearly of violence against animals themselves rather than the violation of property rights or disruption of the public order.” As Bergh interpreted his own law, that included the right of turtles to be protected from unnecessary pain.⁷

Thus, Bergh considered Captain Calhoun a rank criminal for shipping his turtles in an “unnatural” position that seemed obviously cruel. But Calhoun protested his innocence, explaining that this was standard practice in the trade and the least harmful way to transport them. Their backs’ hard carapace protected them from the damage they would otherwise inflict on their softer bellies as they flailed for their freedom in the hold of a ship.

Bergh was not buying it. Exercising his authority under the new anticruelty law, he ordered two policemen to arrest the captain and his entire crew. The patrician Bergh—likely sporting his usual top hat and cane—led the disgruntled fishermen to the city court and jail known as The Tombs. There they would face a strange new kind of justice, a law that Bergh felt sure had granted even reptiles bound for the soup pot some measure of rights. A parade of curious bystanders trailed behind the animals’ champion and his prisoners—“a motley crowd,” in Bergh’s opinion, “of loafers and ruffians.”

Long a staple source of fresh meat for sailors, turtles had the misfortune in the nineteenth century of pleasing the palates of wealthy Europeans and Americans, who found the gelatinous “green fat” under the turtle’s shell a particular delicacy. Among the various edible species, gourmands particularly hungered after the green turtle, a seagrass feeder that commonly grew to four or five hundred pounds, and sometimes twice that much. From Nicaragua to the Carolinas, hunters used nets and spears to capture thousands of these migratory animals each year. Or, when female turtles left the safety of the sea to lay their eggs on a moonlit beach, hunters capsized them, then either butchered them at their leisure or hauled them to holding pens before sending them on the long voyage to northern markets.⁸

Wealthy men in New York expressed their passion for turtle meat by joining “turtle clubs,” convening each season for meals in which the reptile’s flesh formed the center of every course—soups, steaks, chowders, and salads. A single restaurant in New York cooked over twenty-five thousand pounds of turtle meat each year and shipped its soup and steaks as far away as London. Since turtle dishes had become “the greatest luxury of the epicure,” as one observed, no friend of the animals could hope to disrupt the trade. “Turtles must and will be had.”⁹

When Bergh arrested Captain Calhoun, he never meant to interfere with the turtle fishery. He liked to tell audiences that he was fond of turtles, but also turtle soup. Done humanely, taking an animal’s life was not an act of cruelty, as he saw it. “Otherwise the butcher exposes himself to this charge,” he reasoned, “and all who eat flesh are to a certain extent accomplices.” As he would explain countless times over the course of his career, the anticruelty law never questioned people’s right to use animals, only their right to abuse them.¹⁰

But can one abuse an animal that has no feelings? At Captain Calhoun’s trial, the defense produced an expert witness, a Dr. Howard Guernsey, who testified that the “nervous organization” of turtles was “of the very lowest order,” making them incapable of suffering. In his view, piercing the creatures’ flippers and binding them with cord made no more impression than a human would feel from a mosquito bite. The source of Guernsey’s authority to speak on the physiology of turtles was not explained in the court records, but some measure of his reliability might be found in his explanation that “dying is not as painful as toothache.” He claimed to have “never seen any person dying in agony.” From this he reasoned that, if Bergh was correct in his claim that turtles died more quickly when placed on their backs, the poor creatures might count this a blessing.¹¹

Do animals suffer when they die? Do turtles have moral and legal standing? These matters were murky enough, but the debate in Justice Hogan’s courtroom was further muddled by confusion about some basic biological concepts. As one New York paper summarized the “knotty question” at stake in the trial, “IS A TURTLE AN ANIMAL OR A FISH?” The defense’s expert, Dr. Guernsey, located them in a middle ground between crustaceans and amphibians, “like a crab, lobster or oyster.”¹²

Across the country, newspaper pundits chimed in with their own opinions and observations about the turtle’s body and mind. More than one suggested that, if left too long on its belly in the hold of a ship, a turtle would cut its own throat by rubbing against its lower shell. Another, who had eaten many turtles on a long sea voyage, offered the comforting suggestion that “decapitation and evisceration [were] merely viewed by these philosophical reptiles in the light of an agreeable stimulus.”¹³

In this early test case of the anticruelty law, Judge Hogan’s skepticism was clear. Seeking to score a point against Bergh, the judge asked him if removing turtles from the water in the first place was not an act of cruelty. Pushed to its logical conclusion, he implied, a law preventing cruelty to turtles might deprive humankind of the pleasures of their flesh. Displaying a better grasp of biology than most in the courtroom that day, Bergh explained that sea turtles were not harmed by being removed from the sea because they lived a portion of their lives on land.

Bergh ridiculed the defense’s claim that turtles were not animals but fishes. For a century, experts in the new science of comparative anatomy had been proposing competing schemes for classifying animals. But none of them doubted that turtles belonged in the reptile family, or that reptiles were animals. Like many wealthy young men in his day, Bergh had never bothered to finish college, leaving Columbia after two undistinguished years. But in court that day, he assumed the role of an exasperated expert. All of nature divides into three “kingdoms,” he lectured—animal, vegetable, mineral. If turtles are not “animal,” he asked, then which of the remaining choices might they be?¹⁴

In addition to their self-serving zoology, Captain Calhoun’s lawyers made a more plausible argument, suggesting that the new state law against cruelty to animals never aimed to include “lower” species such as turtles. Here was a valid legal question, and one that soon provoked a boisterous public debate about humanity’s moral obligation to other species. The new anticruelty law staked a radical claim that animals enjoy the right to be protected from avoidable pain and suffering. But even if humans accepted this idea in principle, did that duty extend to all creatures? Just how far down the chain of being did this protection against cruelty go? Bergh thought all the way down. When the “Great Creator” gave life to “the poor despised turtle,” He also gave it “feeling and certain rights as well as ourselves.”¹⁵

Others howled in protest. If Bergh and his followers in the ASPCA aimed to defend “all animal life,” that slippery slope would lead them to an absurd concern for the well-being of toads and crocodiles, clams and mussels—even the pernicious mosquito. “We live in an age of radicalism,” one editor complained, but “it was never contemplated that this benevolent society would look after either reptiles or vermin.”¹⁶

Not all editorial opinion ran against Bergh. Some, including Horace Greeley’s Tribune, poked fun at the crude, self-serving biological speculations of the ship captain’s lawyer and the court’s bewilderment about where to place the turtle in the animal kingdom. The editor summed up the case as turning on the question “whether a turtle is animal enough to enjoy having ropes run through its fins.” And Frank Leslie, publisher of the popular Illustrated Weekly and a valuable ally to the anticruelty movement, ran a cartoon depicting two turtles looking over a man who was bound and splayed, ready for the butcher’s knife.¹⁷

Still, most of Bergh’s allies feared that he was doing more harm than good, inviting the mockery of his “sacred cause” and distracting the public’s attention from the more obvious and pressing abuses suffered by horses, cows, and other animals “of service and use.” It was the whipping and driving of horses, cruel methods of slaughtering livestock, and malicious treatment of stray dogs that moved most hearts, including those of the legislators who passed the anticruelty laws with little debate. “The protection of cats,” another editor suggested, “should be the lowest grade of animals to which [Bergh] should give his humane attention.”¹⁸

Bergh did not take the criticism lightly. In public he fought back in a series of letters and lectures, denouncing his foes as “brutal and unthinking people.” He sincerely believed that the new law’s ban on cruelty extended even to those “lower” creatures deemed morally negligible by most. The Florida turtles, traumatized by their cruel treatment on a long sea voyage, might appear sluggish, even indifferent to their fate. But he reminded New Yorkers that in their native habitat these creatures were powerful, alert, and acutely attuned to danger—a sure sign that they understood what it means to suffer.

For Bergh, the arrest of Captain Calhoun served as a visible and controversial test case for a wider moral claim he was making in defense of all Creation. Every living thing, he insisted, demonstrates “more or less consciousness of pain.” The mangled worm wriggles in an agony that should touch the human conscience; even primitive mollusks and polyps contract, “sensitive to the slightest injury.” The 1866 turtle case, then, was just the opening salvo in Bergh’s decades-long defense of the rights of reptiles and rabbits, chickens and lobsters, an effort that produced few victories, a barrage of ridicule from the press, and a rich and brawling public tussle over the boundaries of human accountability for those creatures that Bergh called “Our Dumb Slaves.”¹⁹

But Bergh’s arrest of Captain Calhoun was motivated less by his cosmic empathy for all living things than by his recognition that the anticruelty movement needed publicity and that newspaper friends and foes would be helpless to resist such a curious case. “Public opinion had to be created and educated,” he later explained, “and I immediately saw that I must do something bold and outrageous.” Like many other moral crusaders before and since, Bergh concluded that it was better to provoke the press’s ridicule than to wither under its apathy. He had not, in fact, stumbled across Captain Calhoun’s shipload of turtles accidentally, but had sought them out after reading of their arrival in a local paper. He had come to the Fulton Fish Market that day searching for a “first class sensation.”²⁰

It worked. The case provoked public conversation about the “celebrated turtle case” in every city newspaper, in columns across the country, and in the streets as well. Here was “the excitement I desired,” Bergh wrote years later. “Within a week thereafter, a million of people, had read—and for the first time thought of the matter!”²¹

Little of that thinking went Bergh’s way. Newspapers derided the “maudlin Bergh” for his “pathetic appeals” on behalf of lowly creatures. And a Manhattan saloon placed a large live turtle in front of its premises, cushioned on a bed of cornhusks, a pillow under its head. Above him the proprietor posted this message:

Days later the court declared Captain Calhoun innocent. Bergh’s only consolation came when the judge dismissed a countersuit that the captain had brought against him for “malicious prosecution and false imprisonment.” Bergh greeted this ruling as vindication of the right of SPCA agents to pursue these cases, without fear of being jailed themselves. Unwittingly, when the state legislature passed the anticruelty law, it issued Bergh and his deputies a license to provoke a public conversation about the limits of human power over other animals.²³ The notorious turtle case would prove to be the first of many controversies in which Bergh used his new law to challenge a use of animals that few had ever considered morally problematic.

DENIED IN COURT, BERGH APPEALED to a different tribunal, the city Board of Health, charging that cruelty to turtles turned their meat to poison. “When these animals are prepared and eaten,” he warned, “dangerous consequences to health, and even life, are likely to ensue.” But the board denied his claim that turtle torture was a “sanitary” problem. However much the long journey and brutal treatment damaged the health of the turtles, the authorities saw no reason to believe that this threatened the well-being of those who ate them.²⁴

Unwilling to concede defeat, Bergh then wrote to Louis Agassiz, the Harvard professor widely considered the nation’s leading authority on all aspects of natural history. Bergh explained his arguments against the practice of turtle shipping and told the naturalist that the verdict in this trial had come down to the question of whether or not the turtle is “an animal so endowed with sensation that it can be the subject of cruelty.” Among his many other interests, Agassiz had written extensively on the turtle. His laboratory shelves brimmed with turtle skeletons and whole specimens pickled in alcohol, and his house and garden “quite swarmed” with live ones he enjoyed as pets, including a rare specimen captured at Walden Pond by his admirer Henry David Thoreau. As Bergh put it, “no other person can speak with equal authority” on the turtle’s true nature.²⁵

Just back from a celebrated expedition to the Amazon, the great scientist ignored Bergh’s request, twice. But he could not evade Bergh’s third letter, which explained his plan to send a personal emissary to Agassiz’s home, asking him to come to New York to deliver a lecture on turtles. “My life is absorbed with duties,” he finally replied. A trip to New York was “out of the question.”²⁶

After brushing off this invitation, however, he warmed to the theme and gave Bergh the vindication he sought. The turtle mongers’ rationalization that their victims did not suffer “when dragged from their natural haunts,” turned upside down, and bound together, was, the professor thought, “simply absurd.” True, Agassiz conceded, turtles could live longer than most creatures when deprived of food and water. But he insisted that placing them on their backs produced pain, and ultimately death, caused by “the unnatural pressure of parts brought into unaccustomed positions.”²⁷

Agassiz’s liberal piety often informed his biological speculations. In a recent work, for example, he had stirred controversy by claiming that animals have immortal souls. A Heaven without animals, he reasoned, could be no wise God’s blueprint for paradise. Thus, in seeking the great professor’s expert testimony, Bergh knew he would get more than a lesson in the reptilian nervous system, and Agassiz obliged. “I need not tell you that men have always excuses enough to justify their wrong doings,” he continued in his open letter to Bergh. “So it was with the slave trade… so it is today with the turtle market; and though black men are more likely to be protected hereafter, their former sufferings during long sea voyages are on record, and humanity shudders at the tale.” In 1866, as the nation had scarcely begun the moral reckoning of its war over slavery, Agassiz suggested that Florida’s green turtles still suffered their own “middle passage.” Echoing the sentiments of the many hundreds of men and women who joined the anticruelty movement, Agassiz portrayed the abolition of slavery as just one important step on a continuing journey of moral progress. “Whether men may ever be refined enough to feel their guilt when they torment animals remains to be seen,” he concluded, “and your society will no doubt do its share in educating them in that direction.”²⁸

Bergh’s critics also saw a connection between abolitionism and animal rights but felt it threatened chaos instead of fostering progress. One sneered that the same radical humanitarians who had provoked the nation’s bloody civil war now agitated for both “Negro suffrage” and “the rights of pigs and poultry to life, liberty and the pursuit of happiness.”²⁹ In this way, the public debate over the turtles’ feelings, their rights, and even their prospects of swimming in Heaven, carried an enormous political freight.

THOUGH CAPTAIN CALHOUN HAD “ESCAPED from the hands of justice,” Bergh remained undaunted. In 1870 he renewed his campaign to protect the turtles, arresting a man who was bouncing a wagonload of them, flipped on their backs and pierced with ropes, over the city’s cobblestone streets. This time the turtles made a court appearance. While the defendant sought bail, the alleged victims snapped at all who came near. At trial Bergh put Louis Agassiz’s letter into evidence and backed it up with court testimony from two more leading naturalists.³⁰

Again, Bergh lost. As the New York Times reported, Judge Dowling concluded that “the turtle is a reptile, and not an animal,” and as such was not covered by a state law preventing cruelty to animals. Here the judge ignored testimony Bergh presented from a range of lawyers and legislators, all supporting his claim that the statute offered protection to “the whole brute creation.” As one attorney put it, “Anything that lives and moves is included in the word ‘creature,’ and is intended to be protected by the statute.” Dowling openly scoffed at the idea.

No paper supported Bergh’s defense of turtles. Some wondered if it had been a mistake for the state to pass a law that had given free rein to his “eccentric humanity.” Though Mr. Bergh “may be all right,” one editor reasoned, he damaged the credibility of the anticruelty movement when he failed to recognize the difference between animals and turtles. As the Herald concluded, the man’s “ill-judged zeal made humanity look very like a nuisance.”³¹ Many saloonkeepers and restaurant owners celebrated Bergh’s defeat by displaying live turtles in front of their establishments “in all stages of impalation.”³²

Over the years, Bergh would try several more times to win a cruelty conviction against the men who shipped, displayed, and carved up turtles, without any more success. Clearly exasperated by the court’s shaky grasp of both the law and biology, and the public’s “unfeeling ridicule,” he declared that his thankless service often sent him home “with a troubled spirit to a disturbed pillow.” But he found a larger victory in this defeat. For the rest of his twenty-year career as a champion of animal rights, Bergh would tell the tale of his first notorious turtle trial. By making such a wide and shocking claim for the scope of his anticruelty law, defending the cold-blooded as well as the warm, he forced friend and foe to take notice of his organization.

As he put it, when building a movement, “Notoriety is wanted.” The turtle trials let the world know that the anticruelty movement would defend all of brute creation, not just the horses that most considered the proper subject of his work. “One thing seems to be generally admitted by the press and public,” he gushed to a friend after losing his first turtle case. “The Society is fast becoming a power in the State, for doing good and terrifying workers of cruelty.”³³

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