ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 255 



Mr, President, yoa will turn to page 118 of the printed Argument 

 (which is the only foundation for that note in the judgment), I think it 

 will be seen that it does not rightly construe what the learned Judge 

 said. It is the sentence beginning: 



It is said the owner of the soil is entitled to the tree and all witLin it. This may be 

 true, so far as respects on unreclaimed swarm. While it remains there in that con- 

 dition, it may like birds or other game, (game laws out of the question) belong 

 to the owner or occupant of the forest ratione soli. According to the law of nature, 

 where prior occupancy alone gave right, the individual who first hived the swarm 

 would be entitled to the property in it ; but since the institution of civil society, and 

 the regulation of the right of projierty by its positive laws, the forest as well as the 

 cultivated field, belong exclusively to the owner, who has acquired a title to it under 

 those laws. The natural right to the enjoyment of the sport of hunting and fowling, 

 wherever animals fera'. iiatiirw could be found, has given way, in the progress of 

 society, to the establishment of rights of property better defined and of a more 

 durable character. Hence no one has a right to invade the enclosure of another for 

 this purpose. He would be a trespasser; and, as such; liable for the game taken. 

 An exception may exist in the case of noxious animals, destructive in their nature. 

 Mr. Justice Blackstone says : — If a man starts game in another's private grounds, and 

 kills it there, the property belougs to him in whose ground it is killed, because it 

 was started there, the i^roperty arising ra^ioxe so?i. (2. Black Com., 419.) But if 

 animals /er«: riaterte that have heen reel (timed, and a qualified property obtained iu 

 them, escape into the private grounds of another iu a way that does not restore them 

 to their natural condition, a different rule obviously a^iplies. They are then not 

 exposed to become the property of the lirst occupant. The right of the owner con- 

 tinues — 



and so on. 



I submit it is clear that the learned Judge there is referring to the 

 argument in the course of the case, in which he says. 



It is said the owner of the soil is entitled to the tree and all within it. This may be 

 true. — 



He is treating it as a point made in argument; but he goes on to show, 

 in the very next words, that he is there referring not to the question 

 of property strictly so called, but to the right of the owner ratione soli, 

 that exclusive right to take, and there being no property without taking. 

 As my friend was good enough to call my attention to it, I thought it 

 right to make that observation. 



Now, I have exhausted all the authorities cited by my learned friends 

 in the course of their written Argument, and there were none others 

 referred to in the course of the oral argument; but my friend Mr. Carter 

 has been good enough to furnish us with a small volume, — I do not know 

 whether the members of the Tribunal have had it or not, — it is entitled, 

 " Citations from the Writings of Jurists and Economists illustrating 

 and supporting certain proi^ositious maintained in the Argument of the 

 United States upon the subject of property". Well, 1 wish to pay 

 every tribute to the erudition and labour of my friend ; but when 

 1026 I cite the propositions iu respect to which these authorities are 

 collected together, unless I am invited to do it by the Coui't, I 

 certainly do not intend to pursue the enquiry further. 



Now, the propositions are these. 



First. That the eartb and all its bounties were originally bestowed upon mankind 

 in common. 



Second. That the institution of property, and especially of private property exists 

 only for the satisfaction of the great social necessities of mankind. 



That such necessities may be generally described as two-fold: 



1. The preservation of peace and order, 



2, 'Y^Q preservation of the gifts of nature, an'd the making of them more prod nctive, 

 in order to support the increasing population of the earth which the advance of civil- 

 ization necessarily involves. 



Third. That the institution of property is governed by the social necessities Avhich 

 it is designed to satisfy; and will be extended to every subject to which those neces- 

 sities require its extension. 



