166 



TLe j;'cneral rule tlint wild auimals become tlie proi^erty of tlie first 

 taker proceeds upon the giound, stated iii the lustitutes of Jiistinian, 

 that "natural reason ftives to the first occupant that which had uo])re- 

 vious owner." But there are exceptions to the general rule that arise 

 from the necessary wants of society. To the end that it maj 

 not lose the benefit of valuable animals, exhaustible in quantity, 

 society, in other words, the law speaking for organized society, stinni- 

 lates the exercise of care, industry, and self-denial, by permitting 

 ownership in such wild animals as can be induced to come and 

 remain so far under human control and supervision that their prod- 

 uct can be regularly utilized for the use of mankind without injury to 

 the stock. And this right of property is under the protection of the 

 law. If the law did not so declare the inevitable result would be 

 the extermination, by waste or consumption, of many animals that 

 the world needs and with which it would not willingly part. 



With respect to wild aninials which by universal assent come within 

 the exception to the general rule, the law, I repeat, has prescribed certain 

 conditions as essential to the acquisition of property in them. These con- 

 ditions all point to such occupation or control of the animals by man — the 

 result of his care, industry, and self-denial — as indicates his capacity 

 to rea]>, regularly, their product without materially diminishing the 

 race itself. And as such conditions may all be performed in the 

 case of bees, pigeons, deer, and the like, the law, in the interest of 

 society, that its wants may be supplied, recognizes a right of property 

 in such animals in every case where the conditions have, in fact, been 

 performed and can be maintained. The only quality common to all of 

 these animals is that man by art and industry may acquire such pos- 

 session and control as will enable him to render to society the useful 

 service, necessary to human life, of reaping from them their regular 

 increase without destroying the stock. This benefit society cannot 

 have, unless it rewards the industry and self-denial so practiced with the 

 right of property ; and, therefore, it does so reward those qualities. No 

 man would cultivate bees and furnish the market with honey unless he 

 was promised property in both the original and new swarms. No man 

 would furnish a place for and "cultivate" wild geese, swans, and pig- 

 eons, unless they were protected as property, while they are temporarily 

 out of his ])ossession. No man would care for wild deer by enclosing 

 the forest, watching the does when they dropped their fawns, making 



