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A peculiar species of property: on utility and pricelessness
Dog-stealing, then, was seen as systematic, professional, cruel, heartless and virtually
beyond the reach of the law.
The Times
(2 August 1844:4) concluded that, 'in the
matter of dog-lifting the “great fact” which meets the public eye is, that nobody can
keep a dog that is worth anything, or for which they can be ascertained to feel any
affection'; 'On this phenomenon of the day', it went on, 'policemen, dog-dealers,
and the losing public are wholly agreed, and Parliament bestirs itself to probe the
evil.' As
The Times
noted, the problem was acute enough for Parliament to sanction
a Select Committee to consider changing the law to make it more effective in
combating the dog-stealers. One of the major obstacles here, however, was that it
was not at all clear what
kind
of crime dog-stealing actually was, and the
ineffectiveness of the existing law resulted precisely from this legal ambiguity. The
whole question turned on the difficult question, in English law, as to the value of
dogs as
property
. Given a dog's liability to stray, for instance, in contrast to most
other types of property, it was difficult to draw sharp legal distinctions between
stealing, receiving and simply 'finding' 'lost' dogs. As the Metropolitan Police
Commissioner Richard Mayne reported to Parliament:
A dog is that sort of animal, allowed such liberty, and that runs about in that
kind of way, that he may be enticed away in a manner that no other property
can be. It is not possible for a horse or a sheep, or any such animal, to be
enticed away like a dog. You do not find them straying about as dogs do.
(
Report:
3)
The dog was, as the Radical MP Joseph Hume informed the House of Commons, a
very peculiar and ill-defined 'species of property' (
The Times,
12 June 1845:3).
For one thing, it was difficult to assess the
value
of a pet dog. While long-
standing tradition insisted that animals were to be understood in terms of their
utility
for human beings, the notion of 'aesthetic utility'—pets as sources of pleasure
pure and simple—was difficult to reconcile with traditions of utility derived from a
more bluffly pragmatic rural society.
7
In this vein, a dog such as a toy spaniel was
particularly difficult to justify on grounds of utility alone, all the more so in that it
was stereotypically a woman's pet.
8
So while Ritvo (1987:2) can assert that '[n]
ineteenth-century English law viewed animals simply as the property of human
owners, only trivially different from less mobile goods', it is clear that there was
nothing simple about this.
Indeed, whether one could even have property in a dog was a legal problem of
some complexity (Seipp 1994:85). From Tudor times, certain animals such as dogs,
cats and animals kept for sport, as well as certain types of landed property, were
specifically excluded from the larceny statutes. Judges predisposed to leniency could
thus propose that certain types of stolen goods, if they could not be undervalued in
the defendant's favour, might be taken as formally without value in law (Milsom
1981:426). This 'strange doctrine of pricelessness', as the legal historian Baker
