177 



becomes the owner because all things are presumed to be somebody^s 

 propert}^, and because uo oue can be pointed out as having better right 

 than he to the proprietorship of this particular thing." Of course, as 

 we have seen from the authorities cited, the possession of which the 

 learned writer speaks, is not necessarily actual manual possession, con- 

 tinuously held, which iu many cases is impracticable, but that posses- 

 sion in law, that general control, which may exist, although the thnig 

 possessed is temporarily absent from its OAvner with the animus rever 

 iendi. 



So, Mr. liowyer, in his Commentaries on the Constitutional Law of 

 Emjland, 2d Ed., London, 1846, p. 127: "III. The third primary right 

 of the citizen is tliat of property, which consists in the free use, enjoy- 

 ment, and disposal of all that is his, without any control or diminution, 

 save by the law of the land. The institution of property — that is to 

 say, the ai^iiropriation to particular i)ersons and uses of things which 

 were given by God to all mankind — is of natural law. The reason of this 

 is not difficult to discover, for the increase of mankind must soon have 

 rendered community of goods exceedingly inconvenient or impossible 

 consistently with the peace of society; and, indeed, by far the greater 

 nnmber of things cannot be made fully subservient to the use of man- 

 kind in the most beneficial manner unless they he governed hij the laws 

 of exel usive appropriation.^' 



The suggestion has been much pressed that the authorities cited in 

 support of the claims of property by the United States refer to animals 

 ferw naturw that have been either tamed or reclaimed by the art or 

 industry of man. And it was said that these fur seals are neither 

 tamed nor reclaimed. But upon careful attention to the reasons 

 assigned by courts and writers for the recognition of property, under 

 given circumstances, in bees, pigeons, deer, wild geese, and swans, it 

 Avill become manifest that there was no purpose to declare in respect 

 to any of these animals that they had lost all of their original wild- 

 ness. Some wild animals may be so tamed, or become so subdued 

 by the treatment accorded to them or by the circumstances attending 

 their situation, as to exhibit very little timidity or shyness in the pres- 

 ence of man. Other animals, usually called wild, but not gentle in 

 their nature, are more difficult to approach. Still others retain, under 

 all circumstances, so much of their original wildness, and so much of 

 their innate fear of man, tliat it is imi)ossil)le to handle them as can 

 often be done in the case of some strictly domestic animals. When, 

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