208 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



They submit themselves to the control of man just iu the same sense, 

 and iu no other sense, as they submit themselves to the (•ontrol of the 

 killer-whale wheu they go out into the sea where the killer-whale can 

 catch them. They are safe from the killer- whale on land; but they are 

 obliged, "by the imperious instincts of their nature", to return to the 

 sea, and there they return to a place where they are exposed to the rav- 

 ages of the killer- whale; and it would be as true to say that they vol- 

 trntarily submit themselves to the ravages of the killer-whale as to say 

 that by resorting to the Islands they voluntarihj submit themselves to 

 the control of man. You might as well siiy the turtle, that comes to 

 deposit its eggs in the sand to be hatched by the rays of the sun, coming 

 upon the land indeed " by the imperious and unchangeable instinct of 

 its nature" submits itself to the control of man because man u)ay take 

 advantage of the opportunity to knock it on the head ; or, as my learned 

 friend reminds me, may begin by turning it on its back and keeping it 

 on its back a certain time before it is knocked on the head. 



Then the next thing said is this: they have, by this imperious and 

 unchangeable instinct of their nature, the animus revertendi. And then 

 . . ,. the United Slates say they constantlv come back to us, 



Animus revertendi. , .^ i j i - j. i /• j. j.i 'j* 



and even if we do nothing to domesticate them, even it 

 "we cannot found a property in them per influstriam, even if we do notli- 

 ing to induce them to come there or to giv^e them this habit of 

 969 returning, yet the fact of their coming back gives us a property 

 interest. Now, with great deference, this is an entire misconcep- 

 tion of the doctrine of animus revertendi. First of all, I know of no 

 case, and my learned friends have cited none, in which this doctrine 

 has ever been applied to the case of migratory animals. 



Could it be applied for instance to the wild ducks that breed in the 

 northern parts of the Canadian territory and come down at a different 

 season to the south, afterwards returning to the north 1 There is no case 

 that I am aware of decided on this doctrine of animus revertendi, or 

 which has any reference even to it, unless the Imbit or custom of return- 

 ing operates after a short interval calculated by hours, or perhaps by 

 days. As truly might you say that there was the animus rerertendi to 

 the ocean as an animus revertendi to the Pribylof Islands. When you 

 get an animal which spends half its life in one place and half in the 

 other, I think it will be found that this doctrine of animus revertendi 

 has no bearing on the question. 



But there is another ground on whi(;h the reference to this doctrine 

 has beer entirely misconceived. There is no case that I am aware of, 

 and I speak subject to correction, but certainly none has been cited, 

 where animus revertendi has been referred to in connection with the 

 right of property, except where the animus has been induced by the 

 effort or industry of man. 



Where the instinct belongs to an animal and it acts according to its 

 influence, where man has nothing to do to get it to return, where man 

 has nothing to do to foster that return, where man has nothing to do to 

 induce it to return, as by providing home or food, the doctrine of animus 

 ■revertendi has no application. And I may illustrate my meaning I think 

 in a sentence. I will take three or four well known classes of animals: 

 pheasants, rabbits, grouse, hares. Let us see what happens in each of 

 these cases. 



What does the man who raises pheasants begin by doing? He 

 begins by stealing the pheasants' eggs out of the nest in order to induce 

 the hen pheasant to lay more eggs; and, having done that, he proceeds 

 to hatch the eggs he has abstracted under a common barn-door hen. 



