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



proprietor iigainst any persou hunting on liia land does not really cliangv tlie natnre 

 of the game which is'none the less always a thing wi/Z/ihs; "prohihitio ista" as Vin- 

 iiins well says "conditionem aniinalis nintare non potest." The owner of the land 

 cannot hring an action to recover the game since he has never been the owner of it; 

 all he can do is to sue for damages. 



That is for tlie trespass. Then the Law of the 3rd of May, 1844, 

 which I have already referred to, eontaiiis nothing contrary to this 

 principle; but it does appear to provide that in the case of hunting 

 during the prohibited time this hiAv deprives the hunter of the game 

 which he has killed or taken; and, further, in reference to killing out 

 of season, it is not in order to restore it to the proprietor of the land 

 on which it has been killed by a third person, for, as we have seen, the 

 law gives it on the contrary to charitable societies. 



Senator Morgan. — Confiscates it. 



Sir Charles Eussell. — Yes, if it can be called confiscation. 



Senator Morgan. — That is because it is killed in violation of law. 



Sir Charles Russell. — Then the next passage vrhieh is instructive 

 is from the book by M. Villequez, doyen de la Faculte de Droit de 

 Dijon, '' Droit du chasseur." 



1034 Game at large which is not confined in an inclosed area from which it can- 

 not escajie, belongs to no one, no more to the proprietor of the laud on which it 

 is harbouring, lying or perching or through which it is passing than to any one else. 

 It becomes the pi-operty of the first who takes possession of it eveu on ground where 

 he has not the right of chase or pursuit. This is a constant principle applied with- 

 out dispute from the time of the Romans to our oAvn days. It results from the very 

 nature of the things. Natural law and reason alone would teach it, were it not every- 

 where written and acknowledged. A right in fact is not intelligible except so far 

 as it is possible to exercise it. The exercise of the right of property consists in the 

 use of the thing which is subject to it. The proprietor of a field uses it when he- 

 cultivates it, when he reaps it, or even Avhen he walks over it. To use a hare which 

 is lying there he must begin by taking it, or at least by having it in his possession 

 in such a manner as to be its master and to prevent it from escaping. Up till that 

 time it belongs to no one, is its own master, and often will only lose its liberty with 

 its life, to the profit of whoever kills it for the purpose of appropriating it by taking 

 possession. 



The next clause is from Pothier Be la FroprieU, No. 57, and from 

 the same author Demolombe, vol. xiii, No. 26. 



The property w'hich is established in wild animals by possession rests so clearly 

 on the fact of efl'ective possession that it is lost with that jjossession when the ani- 

 mals by escaping iiom us have regained their natural liberty, and have thus returned 

 to the "negative domain" of the humau race; thns ditfering from inanimate things 

 and domestic animals in which we retain the property eveu wheu they are lost. 



Then, upon the subject of fishing, fish of the sea and in running 

 waters are also, as we have said, like wild animals, res millius. The 

 capture of fish is effected by means of a series of operations covered 

 by the description of fishing. And then from the Ordonnance sur la 

 marine of 1681, 5th book, title I, article 2, and also from Pothier's De 

 la Propriete, No. 51, everyone can fish in the sea without permission. 

 It is, in this sense, that one is accustomed to say sea-fishing is free; 

 for, in other respects, it is subject to by-laws and police rules, which in 

 the general interest, in order to prevent the destruction of the spawn 

 and to encourage the reproduction of different kinds of fish, determine 

 the seasons and hours during which fishing is forbidden, the method, 

 the machines and instruments prohibited, and the size of the nets 

 which may be used. These rules are not binding in the open sea except 

 on the nationals whom alone the national law can follow outside their 

 territory (Civil Code, article 3). They have no legal effect as regards 

 foreigners, exceijt in the limits of the territorial sea. 



