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



fact only lost when tliey have definitely lost their habit of returning? 

 and have resumed their former wild state. 



An extract from Gains' Elements of Roman Law follows, which I do 

 not think I need trouble to read, as it is to the same effect. There is 

 then a quotation from Von Savigny on Possession. The second 

 paragraph is this. 



Wild animals are ouly possessed so long as some special disposition (custodia) 

 exists which enables us actually to get them into our power. It is not every custo- 

 dia, therefore, which is sufBcient; whoever, for instance, keeps wild animals iu 

 a park, or fish in a lake, has undoubtedly done something to secure them, but it does 

 not dejtend ou his mere will, but on a variety of accidents whether he can actually 

 catch them when he wishes, consequently, possession is not here retained. 



How completely that applies ! 



When these animals are ou the Islands the lessees have the capacity 

 to knock a great many of them ou the head and so get possession and 

 capture them; but the moment they go away to seti, they are beyond 

 all human control. And further it is impossible — (as I have pointed 

 out already it makes the case of the seals a fortiori), to keep them iu 

 that continuous confinement which is possible in the case of purely 

 terrestrial animals, because if they are kept on laud they die. 



Now about the animus revertendi I read from the bottom of page 108 

 from Siaviguy; 



Wild beasts tamed artificially — 



1010 That is to say habituated by art, custom, contrivance and 

 teaching of man. 



Wild beasts tamed artificially, are likeued to domesticated animals so long as they 

 retain the habit of returning to the spot where their possessor keeps them. 



The doves in a dove-cot, the bees in a hive, the hawk, are taught to 

 go and to return — they are artificially tamed. 



The next writer cited is Puffendorf, who is one of the class which I 

 may call metaphysical writers, no doubt of great distinction, but one 

 who is always seeking, as I shall show you — (judged not by my state- 

 ment, I need not say, but by the statements of critical men of author- 

 ity) — for some metaphysical reason to justfy the existence of a particu- 

 lar law. This illustration of his method occurs to my mind from the 

 reading of it. He explains the right which he admits to exist in all 

 the nations of the world, to take all they choose to get or can get from 

 the high sea; and he explains it upon the reason that the products of 

 the sea are inexhaustible. Well, that may or may not be a metaphys- 

 ical foundation for the law, but it is clearly not a reason of the law. 

 When nations began to exercise their rights on the high seas, they 

 never asked one another, in settling their mutual rights, if the things 

 they were pursuing were or were not inexhaustible ? They pursued them 

 on the high sea because those things were the common property of 

 mankind, and because there was no exclusive right of any one in the 

 sea: because upon the great Ocean all were equal. That I think is a 

 fair illustration of the value of Puffendorf's statements. 



Then on page 109 there is a citation from Bracton which I think my 

 friend did not read. 



The dominion over things by natural right or by the right of nations is acquired 

 in various ways. In the first place, througii the first taking of those things which 

 belong to no person, and which now belong to the King by civil right, and are not 

 common as of olden time, such, for instance, as wild beasts, birds, and fish, and all 

 animals which are born on the earth, or in the sea, or in the sky, or in the air; 

 wherever they may be captured and wherever they shall have been captured, they 

 begin to be mine because they are coerced under my keejiing, and by the same 



