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



Here is the next proposition wliicli is said to be the same as the first. 

 I agree substantially with the first, but respectfully differ with the 

 second : 



That whenever man is capable of eRtablishin<? a husbandry in respect of an animal 

 commonly designated as wild, such a husbandry as is established in reference to 

 domesticanimals, so that it can take the increase of the animals, and devote it to 

 the public benefit by furnishing it to the markets of the world, in such cases the 

 animal, although commonly designated as wild, is the subject of property, and 

 remains the property of that jierson as long as the animal is in the habit of volun- 

 tarily subjecting himself to the custody and control of that person. 



995 Ton observe the propositions are essentially different. In the 



first, he correctly states the foundation upon which the claim of 

 reclamation, or, in other words, the claim per indnstriani, is based: 

 namely, that by the art and industry of man, the wild animals are made 

 to return to a particular place, so that they can be dealt with, etc. 



But in the next jDroposition it is said that " whenever a mau is capa- 

 ble of establishing a husbandry in respect of an animal commonly des- 

 ignated as wild, so that he can take the increase", etc., that equally 

 gives him the property. 



Now, let me test these two propositions. If the latter proposition is 

 true, it is true also that the owner who rears pheasants on his estate is 

 the absolute owner of them. So as to rabbits; so as to wild deer, 

 unenclos(!d; so as to grouse. Now let me caU attention to the fact 

 how much stronger the case as to pheasants, grouse, rabbits, deer, 

 is. In the case of the pheasants I have abeady stated what is done in 

 the way of rearing them. I have already stated what is done in the 

 way of feeding them. I have already stated what is done in the way 

 of preserving them from attacks from outside by means of game- 

 keepers and others. If this proposition is true, then the owner of the 

 pheasantry who kills his game, as he may do, for the purpose of sup- 

 plying the market, and so establishing an industry or a husbandry, and 

 who can discriminate the sexes, because he can shoot only his cock 

 pheasants, — he too has a property, forsooth, in the industry, and in the 

 cock pheasants and in the hen pheasants, and he may deny the right 

 which the law, as I have said, of every municipal country now gives to 

 everybody, the right of killing these animals when they are outside the 

 land of the particular owner of that pheasantry. 



So in the case of rabbits. A man may establish an industry in a 

 rabbit warren. So in the case of grouse. A man may only kill his 

 cock birds. So in the case of wild deer, in an unenclosed park ; he may 

 only kill his bucks. This argument would land my learned friend, 

 therefore, in the proposition that as regards all these animals, which 

 are admittedly of the class of animals ferce naturce, which are admittedly 

 not domesticated, but which are " cherished " in a higher sense than the 

 seals are cherished, for they are fed and induced to come back to this 

 place — all these animals would become the subjects of private property. 



We have had a frequent reference to the general principles embodied 

 in the phrase " ^ic utere tuo ut alienum non Icvdas.^^ That maxim carries 

 you no further. You have to define what is yours and what is mine. 

 You have to define what is injury and what is not injury. You are all 

 in the vague; you are all in the general. These general maxims tell 

 you nothing. By merely saying " Sic utere tuo ut alienum non Icedas,''^ 

 you do not carry your proposition one whit farther, nor help the Judge 

 who is to decide the question. 



Then we come to another proposition, to which great significance was 

 attached — a proposition which, so far as 1 could see, had been invented 



