244 ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 



Sir Charles liussELL. — Tlie laws common to those nations which 

 were known to the Eonians. 



1012 The President. — The Romans, of course, were not considered 

 as having any international law. . 



Sir Charles Kussell. — Tiien the Case of the Swans — (7 Coke, 15 

 b.), is pointed on page 113. The swan being one of the animals reck- 

 oned a royal bird, the keeping of it required a royal franchise. The 

 technical phrase is the keeping of a " game " of swans. As we all know, 

 swans are nuirked, and tliis case really goes farther in one sense against 

 the contention of my friend than he seems to suppose, because at the 

 top of page 111 it is said: 



It was resolved that all white swans not marked, which liave gained their natural 

 liberty, and are swimming in an open and common river, might be seized to the 



King's use 



But how? 



by his prerogative, because VolaUlia (qiice sunt ferce naturce) alia sunt regalia, alia com- 

 miima; . . . as a swan is a royal fowl; and all those, the property whereof is not 

 known, do belong to the King by his prerogative; and so whales, and sturgeons, are 

 royal tish, and belong to the King by his prerogative. 



13ut it was resolved also that the subject might have property in white swans not 

 marked, as some may have swans not marked in his private waters, the property of 

 which belongs to him and not to the King; and if they escape out of his private 

 waters into an open and common river, he may bring them back and take them 

 again. And therewith agreeth Bracton. 



Then he goes on : 



But if they have gained their natural liberty, and are swimming in open and com- 

 mon rivers, the King's officer may seize them in the open and common river for the 

 King; for one white swan without such pursuit as aforesaid can not be known from 

 another; and when the property of a swan can not be known, the same being of its 

 nature a fowl royal, doth belong to the King. 



I do not thill k I need trouble by reading that authority further. Then 

 on page 115 there is a reference to the case of Child v. Greenhilly (3 

 Croke, 553). 



Trespass for entering and breaking plaintiff's close and tishing and taking fish in 

 his several fishery. Contended for the defendant that he could not say "his" fishes, 

 for he hath not any property in the fish until he takes them and has them in his pos- 

 session. Attorneys for plaintiff maintained that they were in his several fishery, and 

 that he might say "his' fishes, for there was not any other that might take them, 

 and all the court was of that opinion. 



Now this is a matter which, Lord Hannen will forgive me for saying 

 so, requires a word of explanation, for I doubt if it would otherwise be 

 intelligible to those members of the Tribunal who are not acquainted 

 with the technical rules of pleading. The question arose on demurrer; 

 that is to say, the plaintiff was complaining that he, being the owner of 

 a several fishery, the defendant broke and trespassed and took and 

 carried away his fish, wherenpou the defendant pleaded — You cannot 

 say they are " your " fish, because they are not in your possession ; they 

 were merely in your pond, or your fishery; and, therefore, you cannot 

 say — it is erroneous to say, as a matter of law and pleading — they are 

 " your " fish at all. The complaint being trespass on the fishery, 



1013 the Court thereupon decides that, if they were nobody else's fish, 

 they certainly were not the defendant's who is breaking and enter- 

 ing; and on. the question of pleading, that the pleading is not bad which 

 complains of trespass of the several* fishery, merely because it states 

 these fish are the property of the plaintiff. That is the whole case. 



The case of Keeble v. Hickeringill is next cited. This I sball refer to, 

 because it is not set out in the citation at page 115 quite lullyj and I 



