170 



sufiBcicut iu a particular case we must attend to tlie circumstances, and 

 especially to the nature of the thing dealt with, and the manner in 

 which things of the same kind are habitually used and enjo])ed. 

 * * * Again, tliere is another and quite different way in wliicli 

 possession in law may be independent of de facto possession. We 

 may find it convenient tliat a possessor shall not lose his rights merely 

 by losing physical control, and we may so mould the legal incidents of 

 possession once acquired that possession in law shall continue though 

 there be but a shadow of real or apparent physical power, or no such 

 power at all. This the Common Law has boldly and fully done. * * * 

 Legal possession, in our law, may continue even though the object be to 

 common apprehension really lost or abandoned." P. 13, 18. 



The whole subject of possession, as distinguished from ownership, is 

 fully examined in Hunter's Eoman Law. " Possession," that author 

 says, "is the occupation of anything with the intention of holding it as 

 owner," aiid " a thing is said to be occupied or held when the occupier 

 is in a position to deal tcith itP Again, " In acquiring possession of 

 objects not before owned or possessed by others, the question is whether 

 the intending possessor has so far overcome the physical difficulties as 

 to he aUe freely to deal ivith the suhjecf'' I a reference to possession of 

 things not before owned {res nullius) or possessed, the author says that 

 "in such cases to acquire possession is, at the same time, to acquire 

 ownership." Among the examples given by him are those given in the 

 institutes of Justinian and in the Commentaries of Gaius, to which refer- 

 ence has already been made, namely, animals ferw naturm which habit- 

 uallj^ go away and return to the place provided for them. If while they 

 are absent the occupier has not abandoned the intention of dealing with 

 them to the exclusion of all other persons, so as to take their increase 

 regularly at the places provided for them, his possession remains 

 while they have the habit of returning. Under such circumstances, and 

 although the animal is for a time out of the view of the occupier, the 

 law holds that neither "occupation" nor the intention to exclude others 

 — both of Avhich are necessary to constitute possession — have ceased to 

 exist. Huntcrh Roman Laic, 2d ed., pp. 341, 344, 345, Title Possession. 



Of course it is not to be disputed in this case that the United 

 States, by what it has done and can do on the islands of St. Paul and 

 St. George, is in a position where it can deal M'ith this entire race of 

 animals so as regularly to take their increase without materially affect- 

 ing its existence or integrity, nor that it has intended to appropriate 

 or "occupy" this herd to the exclusion of all other nations or peoples. 



