PROPERTY IN THE ALASKAN SEAL HERD. 43 



are not the subjects of property, yet there are many animals which 

 lie near to the boundary imperfectly drawn by these terms, and in 

 respect to which the question of property can be determined only 

 by a closer inquiry into their nature and habits, and one more 

 particularly guided by the considerations upon which the institution 

 of property stands. If the question were asked why a tame or domestic 

 animal should be property and a wild one not, these terms would be 

 found to supply no reasons. The answer would be because tame ani- 

 mals exhibit certain qualities, and wild ones other and different qual- 

 ities; thus showing that the question of property depends upon the 

 characteristics of the animal. This view seems to be correct upon its 

 mere statement, and it will be found to be the one adopted and acted 

 upon by the writers of recognized authority upon the subject of 

 property. It would be sufficient for the present purpose to refer to the 

 language of Chancellor Kent upon this point. No dissent from it will 

 anywhere be found. He says : 



Animals ferce naturae, so long as they are reclaimed by the art and 

 power of man, are also the subject of a qualified property; but when 

 they are abandoned, or escape, and return to their natural liberty and 

 ferocity, without the an hit us revertendi, the property in them ceases. 

 While this qualified property continues, it is as much under the protec- 

 tion of law as any other property, and every invasion of it is redressed 

 in the same manner. The difficulty of ascertaining with precision the 

 application of the law arises from the want of some certain determinate 

 standard or rule by which to determine when an animal is ferw, vol 

 domitoz naturae. If an animal belongs to the class of tame animals, as, 

 for instance, to the class of horses, sheep, or cattle, he is then a. subject 

 clearly of absolute property; but if he belongs to the class of animals, 

 which are wild by nature, and owe all their temporary docility to the 

 discipline of man, such as deer, fish, and several kinds of fowl, then 

 the anitnal is a subject of qualified property, and which continues so 

 long only as the tameness and dominion remain. It is a theory of some 

 naturalists that all animals were originally wild, and that such as are 

 domestic owe all their docility and all their degeneracy to the hand of 

 man. This seems to have been the opinion of Count Buffon, and he 

 says that the dog, the sheep, and the camel have degenerated from the 

 strength, spirit, and beauty of their natural state, and that one principal 

 cause of their degeneracy was the pernicious influence of human power. 

 Grotius, on the other hand, says that savage animals owe all their un- 

 tamed ferocity not to their own natures, but to the violence of man; 

 but the common law has wisely avoided all perplexing questions and 

 refinements of this kind, and has adopted the test laid down by Puffeu- 

 dorf, 1 by referring the question whether the animal be wild or tame to 

 our knowledge of his habits derived from fact and experience. 2 



To this citation we may add the authority, which will not be disputed 

 in this controversy, of two decisions of the court of common pleas in 



1 Law of Nature and Nations, Lib. 4, Chap. 6, sec. 5. 2 Kent's Com., vol. 2, p. 348. 



