ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 243 



rcasou, if they escape from my keeping, and recover their natural liberty they cease 

 to be mine, and again belong to the lirst taker. But they recover their natural lib- 

 erty, then, Avheu they have either escaped from my sight in the free air, and are no 

 louger in my keeping, or when they are within my sight nnder such circumstances, 

 that it is impossible lor me to overtake them. 



Occupation also comprises fishing, hunting, and capturing; pursuit alone does not 

 make a thing mine, for although 1 have wounded a wild heast so that it may be cap- 

 tured, nevertheless it is not mine unless I capture it. On the contrary it will belong 

 to him who first takes it, for many things usually happen to prevent the capturing 

 it. Likewise, if a wild boar falls into a net which I have spread for hunting, and I have 

 carried it ofi", having with much exertion extracted it from the net, it will be mine, 

 if it sliall have come into my power, unless custom orprivilegerules to the contrary. 

 Occupation also includes shutting up, as in the case of bees, which are wild by 

 nature, for if they should have settled on my tree they would not be any the more 

 mine, — 



1011 on liis land still — on his tree: 



until I have shut them up in a hive, than birds which have made a nest m my tree, 

 and therefore if aiiotlier person shall shut them up, he will have the dominion over 

 them. A swarm, also, which has llown away out of my hive, is so long understood 

 to be mine as long as it is in my sight, and the overtaking of it is not impossible, 

 otherwise they belong to the first talvcr; but if a person shall capture them, he does 

 not make them his own if he shall know that they are another's, but he commits a 

 theft unless he has the intention to restore them. And these things are true, unless 

 sometimes from custom in some parts the practice is otherwise. 



What has been said above applies to animals which have remained at all times 

 wild; and if wild animals have been tamed, and they by habit go out and return, fly 

 away, and fly back, such as deer, swans, seafowls, and doves, and suchlike, another 

 rule has been approved, that they are so long considered as ours as long as they 

 have the disposition to return; for if they have no disposition to return they cease 

 to be ours. 



I have already pointed out that Savigny expresses the trne meaning 

 of the word "habituated" to return, or " accustomed" to return, when 

 he describes it as the taming of the animal artificially. 



Then, on page 110, there is a citation from Bowyer, a most respecta- 

 ble gentlenuin but not admitted amongst tl\e highest authorities, I 

 think, but entirely in our favor. Sir George Bowyer is known to some 

 of the Arbitrators, I know. He is known to Lord Hannen I am sure, 

 and known to me very well, and to my friends. In the second paragraph 

 of the citation he says : 



When you have caught any of these animals it remains yours so long as it is 

 under the restraint of your custody. But as soon as it has escaped from your keep- 

 ing and has testored itself to natural liberty, it ceases to be yours and again becomes 

 the ])rop('rty of whoever occupies it. The animal is understood to recover its natural 

 liberty when it has vauislieil from your sight, or is before your eyes under such 

 circumstances, that pursuit would be difficult. 



Then in the middle of the next page 111, he says: 



The general principle respecting the acquisition of animals, /erfc vafitra', is that it 

 is absurd to hold anything to be a nuin's property which is entirely out of his power. 



and so on. 



Then the edition of the Institutes of Justinian, of Cooper, is referred 

 to at page 112. 



Section 12. De Occiijxitione Ferarnm. — Wild beasts, birds, fish, and all animals, bred 

 either in the sea, the air, or upon the earth, so soon as they are taken, become by 

 the law of nations, the property of the captor. 



1 ought to say, I think, with great deference, it is hardly correct to 

 say there "the law of nations." It really is, jus gentium. I suj^pose 

 what really is meant there is the law of particular nations. — It is not 

 Wxiijiis inter gentes, which is referred to; it is the jus gentium. 



The President. — I believe from my recollection of Eoman law jus 

 gentium meant natural law. 



