Colin Dayan in 31(23)
LRB (2009) comments that -
Dog involvement in the lives of humans is documented, questioned and defined by law. Legalised violence against dogs and their owners has a brutal history. English common law, reinvigorated in the United States in the 19th century, turned to old legal conceits about dogs in modern judgments on dog stealing. A statute of George III explained that a dog could not be stolen, for a dog was not considered property. A late 19th-century case in South Carolina summarised the statute: 'It was larceny to steal a tame hawk, but not larceny to steal a tame dog, although it was larceny to steal the hide of a dead dog'. It is disturbing to think that the skin of a dead dog is worth more than a dog alive, but perhaps this is not surprising. Dogs were legally considered no different in terms of property from human corpses. Stealing a corpse, as Blackstone wrote, was not a felony, unless 'some of the graveclothes be stolen with it'. There is property in the skin of a dog as there is in a winding sheet. But a living dog, like a cadaver, was res nullius. It belonged to no one; no one had any right in it.
Dayan goes on to conclude that -
The modern conception of dogs as personal property has done very little to advance their position. They remain subject to the same repressive treatment as others targeted for coercion and control. They have taken their place alongside vagrants and criminals. Out of the maimed right of property in dogs has come a familiar deprivation of persons considered either too servile or too poor to count.
Blackstone's
Commentaries - I rely on Vol IV ('Of Public Wrongs') in the 1979 University of Chicago Press facsimile of the 1765-69 edition - is less restrictive than might be inferred from Dayan's reading. Blackstone at 236 commented that larceny is applicable in relation to
all valuable domestic animals, [such] as horses, and of all animals domitae naturae, which serve for food, [such] as swine, sheep, poultry and the like ... and also the flesh of such as are ferae naturae, when killed.
Blackstone noted that -
As to those animals, which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein, and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to larceny.
