147 



and owned by everyone without distinction," he says, in respect to 

 others:' "For tlie iinimals that are acGustomcd to go out and return^ as 

 bees, pigeons, ducks, geese, and the like, altliough wild by nature, and 

 frequently roaming very far, are considered to remain our property, and 

 may not bo acquired by anybody unless they have continued absent, 

 and have been abandonedby ns ivithout hope of their returning.''^ Bh. 3j 

 chap. 3. 



Bowyer, in his treatise on Modern Civil Law, while stating the gen- 

 eral rule to be that wild animals, birds, and fish, and all animals that are 

 produced in the sea, the heavens, and the earth become the property, 

 by natural law, of whoever takes possession of them, the reason being 

 that whatever is the property of no man becomes, by natural reason, 

 tlie property of whoever occupies it, says: "Bees, also, are of a wild 

 nature, and therefore they no more become the property of the owner 

 of the soil by swarming in his trees than do the birds which build in 

 tlicm; and they are not his unless he inclose them in a hive. Conse- 

 quently, whoever hives them makes them his own. And while they 

 are wild anyone may cut oft" the honeycombs, though the owner of the 

 land may i)revent this by warning off trespassers. And a swarm flying 

 from a hive belong to the owner of the hive so long as it is within his 

 sight, but otherwise it is the property of whoever takes possession of 

 it. With regard to creatures which have the habit of going and return- 

 ing, such as pigeons, they remain the property of those to whom they 

 belong so long as they retain the animus revertendi, or disposition to 

 return. But when they lose that disposition they become the property 

 of whomsoever secures them. And they must be held to have lost the 

 animus revertendi as soon as they have lost the habit of returning," 

 p. 72. 



It will not be questioned that these authorities show that, according 

 to the Roman law, and under certain circumstances, property may exist 

 in some animals admittedly fercc naturoi. What those circumstances 

 are will be presently considered. 



The law common to both of the nations here represented, except 

 where some statute has intervened and established a different rule, is 

 in harmony with the rules established in the Roman law. Bracton, after 

 showing that dominion over things by natural right or by the right of 

 nations may be acquired, or lost, in various ways, says : " Occupation 

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

 nature, 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 



