ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 261 



any place, coudition or manner, or anj' fnrred or feathered game whatever nnder 

 penalty of 100/ tine for the lirst time, donl)le for the second, and for the tliird, to be 

 liable to three lionrs in the pillory of their place of residence on market day, and 

 banished for three years from the jnrisdiction of the maitrise, unless for some cause 

 the judges can remit or diminish the penalty to prohibition. 



The President. — The right of hiiiitiog was considered a regal right, 

 and the Lords had it by tenure only as a derivative right. 



Sir Charles Kussell. — Yes, as a seignorial right. 



The President. — As a seignorial right 5 and that was all derived 

 from the sovereign right. 



Sir Charles Ei^ssell. — Quite so. 



Senator Moikian. — If I understood it, Mr. President, you said it was 

 a right derived from the Sovereign, and not iidiereut in the individual? 



The President. — It was not inherent in the individual under our 

 ancient law. 



Sir Charles Eussell. — Quite so. It was the old feudal law, in 

 which the King was supposed to be the source and origin, the head of 

 the whole society — the Lord of all that was possessed, who granted out 

 from his royal favour this, or that, or the other. That was the old 

 origiiuil feudal idea, undoubtedly. 



The President. — It was somewhat different from the right of prop- 

 erty. The right of projierty was quite independent of any grant of 

 the King. Feudal right was derivative, but allodial right was not deriv- 

 ative — tlie right of hunting was considered part of the power, and it 

 ■was given in fee, just as the right of justice was given. You know that 

 landlords were judges, and were entrusted with the care of judging in 

 certain provinces and at certain times. They had the right of "mint", 

 and several other regal rights of that sort. The right of hunting was a 

 derivative right from the sovereign jiower. It was not quite the same 



as pio])erty. 

 1033 Sir Charles Eussell. — Then there is a reference to the 

 existing Police Law of 1844, which I do not think I need trouble 

 about. It simply says that no one shall have the right to hunt on the 

 property of another without the consent of the proprietor or of his 

 assigns. The right of hunting is thus accessory to property; but it 

 nutst not be confounded with right over the game. The right of the 

 chase otdy allow^s the proprietor to legally possess himself of wild 

 animals found on his land, and so forth. 



Then Monsieur Demolombe, in commenting on the general provisions 

 of Book 3 of the Civil Code — this is in his "Traite des Successions", 

 Volume I, sections 2G and 27 — as to the different methods in which a 

 man acquires property, puts the question, does the hunter who kills a 

 head of game become the owner of it? This is our subject. The 

 answer is simply, the property in the animal killed in hunting belongs 

 to the hunter in virtue of the right of possession. This is one of the 

 divergences from English Law, because this is not restricted to hunt- 

 ing upon his own land. It agrees there with the Eoman Law. 



This rule is perfectly clear when the animal has been killed by the hunter on his 

 own land, or on the land of another with the permission of the proiirietor. But 

 ought this rule to be a])plied in tlie case where the hunter has killed or taken the 

 game on the land of another without the permission of the proprietor, or in sjiite of 

 his prohibition? This is a A'ery old question, and Cujas has niaintained the negative. 

 But the contrary solution has always been generally insisted upon; and it is that 

 which follows from the Roman Laws. 



So that he adopts that view. 

 Then he goes on : 



Pothier in our ancient law likewise maintained it (de la Propri^t(^ n" 24), and it 

 is without any doubt the best according to our present law. The prohibition by the 



