ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 227 



Sir Charles Eussell. — No, Sir; they are not. There are certain 

 classes of animals, which unquestionably in ancient days — the subject 

 is almost without interest in these times — the taking or killing of which 

 were within the exclusive grant and right and franchise of the Sover- 

 eign — the sturgeon was a royal iish, the swan was a royal bird. These 

 were the only exceptions that I can for the moment call to mind. There 

 were certain other franchises which were supposed to be only within 

 the power of the Sovereign to create, as for instance, a free warren, or 

 a deer park; but these are, again, instances which have passed from 

 the donuiiu of practical importance. 



But the game laws of different countries have nothing to do with the 

 question of property in the wild animals. Their sole operation is that 

 the hand of the slayer shall be stayed for a certain period of the year; 

 that within the detined period called the "close time", he shall not be 

 at liberty to exercise that right of killing which the law itself recog- 

 nizes; but it does not touch, it does not affect in any way the question 

 of propert3^ Tlie question of property, according to the law of every 

 civilized country that 1 know of, depends upon the considerations of 

 possession and dominion, upon the nature and habits of the animal, and 

 upon the i^hysical relations of man towards that animal. 



Senator Morgan. — I do not question that ])osition as between indi- 

 viduals, but between the Crown and individuals I think it is otherwise. 



Sir Charles Russell. — Well, Sir, I am not aware of any authority 

 which gives to the Sovereign anymore exclusive right to kill wild birds 

 than anybody else, or to interfere with anybody else killing them. 

 Indeed I may remind Senator Morgan that the term that is used to 

 describe wild animals with reference to the rights of others is borrowed 

 from the civil law. They are described as res tmlUus, and therefore a 

 thing which any one may capture, a thing which the man who first pos- 

 sesses and captures may acquire the property in. The authorities which 



I shall i^resently refer to I think will make that clear. 

 992 There is one other preliminary word I should like to say; and 



it may have some bearing upon what Senator Morgan has been 

 good enough to ask. I think that perhaps what the learned Senator 

 may have in his mind is a historical recollection of a state of things 

 which has long passed away, which relates back to the time when the 

 feudal system existed and when — and the learned President will recog- 

 nize the illustration I am giving in reference to the state of things in 

 France before the Eevolution — when no one below a certain degree or 

 status had a right to indulge in these sports, which were reserved to 

 what was then supposed to be the better part of mankind; and when 

 these privileges of hunting, shooting, etc., had to be acquired by author- 

 ity from the sovereign — a state of things which has long passed away, 

 both in this and most countries, and in England: but it has nothing 

 w^hatever to do with, does not touch in the faintest degree, the question 

 of i)roperty. 



I must notice, before I proceed, a suggestion, I did not really conceive 

 it to be much more than a suggestion, that this question of property 

 was to be judged differently from the mode in which it w^ould be judged 

 if it were a claim by a private owner of the Pribilof Islands to the prop- 

 erty in himself; in other words that the question of property assumes a 

 different character — I do not know that I am well founded in saying that 

 this distinction was made — but that the question of property assumes a 

 different character, is a different thing, is to be tested by diflerent prin- 

 cixjles, when the claim to the property is i)ut forward in the name of the 



