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



of pheasants is than it is possible for the action of the United States 

 or their lessees to be ; how the game preserver takes the eggs away from 

 the nest to induce the bird to lay more than it otherwit^e would; how 

 he places them under an ordinary fowl, and in that way rears them; 

 how he feeds them and keeps them until they grow up, and he kills 

 them; and yet when the birds go off his land upon the land of another, 

 has it ever been heard, could it even be suggested, that this industry 

 of sending his pheasants to market was injured in point of law because 

 his unneighbourly neighbours in the open common adjoining waited until 

 his birds escaped from his land, or were on tlie way back to it, and shot 

 them there, thereby lessening his proiits? The cases are absolutely 

 analogous, but the case of the pheasants is much stronger. 



Take again the case of a rabbit warren. A great many rabbits 

 1067 are imported from this country intoEngland. They arecultivated 

 as an article of commerce. They are also cultivated in England 

 as an article of commerce. There are such things as rabbit farms where 

 everything is given up to the rabbits, and they are sent to the market 

 as regularly as you send barn-door fowls to market, or as you send eggs 

 to market, or butter to market, or any otlier article of farm produce. 

 Is it to be said that when these rabbits leave the land of the man where 

 they are in the habit of burrowing, and go on the adjoining open com- 

 mon or into another man's land, an.d are shot, and thereby his chances 

 of shooting them in his own warren are diminished, and thereby the 

 volume of his business are diminished, — is it to be said that that gives 

 him a right of action? No. 



These are apposite illustrations which, always bearing in mind that 

 the absence of property in the animals is the hypothesis on which the 

 argument of property in the industry is based, show how fallacious that 

 argument is. 



The President. — Would you say that in the case of the Earl of 

 Abergavenny, which you mentioned yesterday, if the deer had been 

 shot out of his park^ it would have been lawful? 



Sir Charles Eussell. — No; because the jury found that the deer 

 were tame. That is the difference. If there be any doubt about that, 

 I will refer to it. 



The President. — Oh no. 



Sir Charles Eussell. — The jury found that the deer were tame; 

 and of course I took it for granted that that point was present to the 

 mind of the Tribunal. I am arguing this question upon the assump- 

 tion that the seals axQferw naturce; that is the assumption upon which 

 my learned friend Mr. Phelps rests. 



The President. — Would you consider the rabbits in the rabbit farms 

 you spoke of as wild rabbits, asferce naturce? 



Sir Charles Eussell. — They are so considered. I have never 

 known any allegation of property in rabbits except in the case of tame 

 rabbits, raised in hutches. 



The President. — In France, you know, we cultivate tame rabbits. 



Sir Charles Eussell.— In hutches you mean? 



The President. — Yes in hutches. That is another thing? 



Sir Charles Eussell. — That is a different thing altogether: I was 

 not of course dealing with that case. 



But on this point I hope I am followed by the Tribunal : I read the 

 argument so that there should be no mistake about it. The projDosition 

 which my learned friend advanced assumes that the animals are ferce 

 naturce. Let me read it again, in order to make my ground clear. 



