514 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 



Senator Morgan. — jS'o; I do not shift it at all. I supposed you 

 meant subject to that qualification. 



Sir Kichard Webster. — I hope so. The seals have never lost their 

 liberty. The seals that are driven and killed possibly have not much 

 liberty left. The seals that are not driven and go away have never 

 lost their liberty at all. If a man has tried to drive them if he let 

 them go he does not restrain their liberty. 



The President. — I believe that is agreed between both parties, 

 what you have just stated. 



Sir Richard Webster. — It may be, Mr. President. Of course it is 

 not possible to argue every point at the same moment; and that is 

 why I reminded the learned Senator that the introduction of the sug- 

 gestion which he was good enough to make to me did not bear upon 

 the argument which 1 was proceeding upon. I was i)roceeding upon 

 the theory that originally the seal was an animal ferw naturw; that it 

 never has lost its liberty 5 and that never having lost its liberty no pos- 

 session has been taken of it; that no possession or occupation having 

 "been taken, the doctrine of animus revertendi has no application at all. 

 I was met with the case of the bees; and accordingly I desire to say 

 that the strongest case they can x)ut, namely, that of those bees, fails 

 them altogether. 



ISow Bracton puts it on their originally having lost their liberty: 



But they recover their natural liberty then, when they have either escaped from 

 my sight in the free air, and are no longer in my keeping, or when they are within 

 my sight under such circumstances that it is impossible lor me to overtake them. 



Occuj)ation also comprises fishing, hunting, and capturing. 



Now then, here is the point the Senator put to me about wishing to 

 drive them : 



Pursuit alone does not make a thing mine, for although I liave wounded a wild beast 

 so that it may be captured, nevertheless it is not mine unless I capture it. On the 

 contrary it will belong to him who first takes it, for many things usually happen to 

 prevent the capturing it. Likewise, if a wild boar falls into a net which I have spread 

 for hunting, and I have carried it off, having with much exertion extracted it from 

 the net, it will be mine, if it shall have come into my power, unless custom or privi- 

 lege rules to the contrary. 



There were certain privileges about wild boars that prevented people 

 from catching them at one time, and that was what Bracton was refer- 

 ring to. 



The President. — Was that under the feudal law or in general? 



Sir EiCHARD Webster. — I think they were under the feudal laws. 



Occupation also includes shutting up, as in the case of bees, which are wild by 

 nature. 



I do not know whether the American Judge referred to meant to con- 

 tradict this or not. 



For if they should have settled on my tree they would not be any the more mine, 

 until I have shut them up in a hive, than birds which have made a nest in my tree, 

 and therefore if another person shall shut them up, he will have the dominion over 

 them. A swarm, also, which has flown away out of my hive — 



That is to say, which has already been reduced to possession in the 

 Mve : 



is so long understood to be mine as long as it is in my sight, and the overtaking of it 

 is not impossible, otherwise they belong to the first taker; but if a person shall 

 capture them, he does not make them his own if he shall know that they are another's, 

 but he commits a theft unless he has the intention to restore them. And these things 

 are true, unless sometimes from custom in some parts the j)ractice is otherwise. 



