151 



doeility to the discipline of man, such as deer, fish, and several kind 

 of fowl, tlien the animal is a subject of qualified property, and which 

 continues so long only as the tameness and dominion remain." Kcfer- 

 ring to the difference of opinion among- naturalists and writers, as to 

 whether all animals were originally tame, and owed their wildness or 

 ferocity to the violence of man, the autlior says : "The common law has 

 wisely avoided all perplexing questions and refinements of this land, 

 and has adopted tlie test laid down by Puffendorf (Laws of jS'ature and 

 I^ations, Bk. 4, 0. 6, Sec. 5), by referring the question whetlier tlie 

 animal be wild or tame to our knowledge of his habits derived from 

 fact and experience." 2 Kenfs Gomm.^ 348. 



Has there been any departure from these principles in the judicial 

 tribunals of Great Britain or the United States'? No case was cited in 

 argument showing that animals feroe naturcc could not, under any 

 circumstances, become the subject of property. On the contrary, our 

 attention has been called to cases distinctly proceeding upon the 

 ground that the inquiry whether particular animals, naturally wild, 

 were to be regarded as property, defjended ujion a consideration of 

 their nature and habits, and the extent to which man, by acting upon 

 their natural instincts or disposition, and by care and watchfulness, 

 has established an industry in respect to them, and induced them to 

 remain so far under his control or power, as to permit him, by means of 

 such control or power to obtain the benefit of their increase, without 

 injuring the stock. This is illustrated by Bavies vs. Poioell, Willes Eep., 

 40, where the principal question was whether deer, in a park of 000 acres, 

 which did not confine them so they could be taken atijlcasure, were dis- 

 trainable for rent. They were not in i)ossession, by actual confinement, 

 and could only have been taken by shooting, or with dogs. The case went 

 off upon the pleadings, but Chief Justice Willes, among other things, 

 said: "It is expressly stated in Bro. Ahr. tit, 'Property,' pi. 44, and 

 agreed in all the books, that if deer or any other things feroe naturm 

 become tame a man may have a i^roperty in them. * * * Upon a 

 supposition, therefore, which I do not admit to be the law now, that a 

 man can have no property in any but tame deer, these must be taken 

 to be tame deer, because it is admitted that the plaintiff had a property 

 in them. * * * Fourth. The last argument, drawn ab inusitato, 

 though generally a very good one, does not hold in the present case. 

 When the nature of things changes, the rules of law must change too. 



