ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 53 



for notliinj? except for tlie deer. Does Le own any particular deer that 

 is on it? Not one. They are liere today and ^one tomorrow. He can- 

 not say to liis ueigiibour,| "These deer were here last suniiner; they 

 were probably born on the land; they come back to me, and you must 

 not touch them". The law does not justify such a claim as that. When 

 they go on the neighbour's property, the neighbour has the same right 

 as he has. So far as thej^ give value to the land, they go with the realty ; 

 and, when one buys the soil, he gets the advantage, the privilege of the 

 deer frequenting it and the opportunity to take them for sport or profit. 



But when we come to these cases, we hud that deer may become 

 property under the same law of England which I have referred to, 

 under which they were not property. Presently we find they are dis- 

 trainable for rent; that is to say, they are specific personal property 

 which may be taken by the landlord by distress for his rent; that they 

 go to the executor and do not go to the heir on the decease of the owner. 

 How comes that to pass*? What is the distinction upon which the same 

 Court renders an entirely different judgment in respect of the same 

 animal in one case from what it gives in another? Are these deer con- 

 fined? In one case the range they had was 600 acres, and in the other 

 700 acres. They could not be caught except by hunting them, or shoot- 

 ing them with a ritle, at a long distance. The proprietor of the land 

 can no more put his hand upon them than anybody else. They flee 

 from his approach, and it is only by running them down in an open 

 forest that he could get hold of them. 



Then what did make them property? The animus revertendi alone, 

 say my learned friends, would not do it. I agree to that. It would not 

 have done it in the case of the deer forest in Scotland. Then, what did 

 make them property? Solely and only the fact that the proprietor had 

 established a husbandry; that they were no longer objects of sport, 

 which assumes that they are /6T«? nafurcv to begin with, — the object of 

 hunting and shooting, — no longer that, but they w^ere made the basis 

 of an actual industry and husbandry, by which their produce was taken 

 by selective killing and sent to the market. Well, but what did he do? 

 He did not shut them up; he did not confine them. He did what the 

 nature of the animal rendered possible, and what the necessity of the 

 industry rendered desirable. That is what he did ; and forthwith, under 

 that same intelligent and discriminating law, the animal that was yes- 

 terday ferw naturce is to-day the subject of jjroperty, and is personal 

 property with all its incidents, going ito the personal representative at 

 death, distrainable for rent, and the subject of an action if anybody 

 interfered with it. 



Now nothing- can be plainer, as I respectfully submit, to a mind 

 accustomed not only to deal with legal principles, but to apply them 

 to the vicissitudes and emergencies of human affairs, than that the sub- 

 stantial distinction which renders those wild animals iiroperty which 

 were not property before, and may cease to be property afterwards, is 

 that they are taken into possession in connection with the perpetuation 

 of the animus revertendi that brings them back to the spot, taken into 

 such possession as they adnnt of, and such possession as is necessary. 

 There is the principle. There is no artificial distinction that depends on 

 their means of locomotion or the character of their covering — whether 

 it is fur or feather, whother they fly, run, or swim, whether their ab- 

 sences are periodic or occasional, longer or shorter, regular or irregular. 



It is the operation of the ])rincii)le under which they are subjected to 

 the control which they admit of and are made the basis of a valuable 



