46 ARGUMENT OF THE UNITED STATES. 



therefore, extends this possession further than the mere manual 

 occupation; for my tame hawk, that is pursuing his quarry in my 

 presence, though he is at liberty to go where he pleases, is never- 

 theless my property, for he hath animum revertendi. So are my pi- 

 geons that are Hying at a distance from their home (especially of 

 the carrier kind), and likewise the deer that is chased out of my 

 park or forest, and is instantly pursued by the keeper or forester; 

 all which remain still in my possession, and I still preserve my 

 qualified property in them. But if they stray without my knowl- 

 edge, and do not return in the usual manner, it is then lawful for any 

 stranger to take them. But if a deer, or any wild animal reclaimed, 

 hath a collar or other mark put upon him, and goes and returns at his 

 pleasure, or if a wild swan is taken and marked and turned loose in the 

 river, the owner's property in him still continues, and it is not lawful 

 for anyone else to take him; but otherwise if the deer has been long 

 absent without returning, or the swan leaves the neighborhood. Bees 

 also axe ferae naturae; but, when hived and reclaimed, a man may have 

 a qualified property in them, by the law of nature, as well as by the civil 

 law. And to the same purpose, not to say in the same words with the 

 civil law, speaks Bracton; occupation, that is, hiving or including 

 them, gives the property in bees; for, though a swarm lights upon my 

 tree, I have no more property in them till I have hived them than I 

 have in the birds which make their nests thereon; and, therefore, if 

 another hives them, he shall be their proprietor; but a swarm, whieh 

 fly from and out of my hive, are mine so long as I can keep them in 

 sight and have power to pursue them, and in these circumstances no 

 one else is entitled to take them. But it hath been also said that with 

 us the only ownership in bees is ratione soli, and the charter of the 

 forest, which allows every freeman to be entitled to the honey found 

 within his own woods, affords great countenance to this doctrine, that 

 a qualified property may be had in bees, in consideration of the prop- 

 erty of the soil whereon they are found. 



In all these creatures, reclaimed from the wildness of their nature, 

 the property is not absolute, but defeasible: a property that maybe 

 destroyed if they resume their ancient wildness, and are found at large. 

 For if t\w pheasants escape from the mew, or the fishes from the trunk, 

 and arc seen wandering at large in their proper element, they become 

 ferae naturae again, and are free and open to the first occupant that has 

 ability to seize them. But while they thus continue my qualified or 

 defeasible property, they are as much under the protection of the law 

 as if they were absolutely and indefeasibly mine; and an action will lie 

 against any man that detains them from me or unlawfully destroys them. 

 It is also as much felony by common law to steal such of them as are 

 fit for food as it is to steal tame animals; but not so if they are only 

 kept for pleasure, curiosity, or whim ; as dogs, bears, cats, apes, parrots, 

 and singing birds; because their value is not intrinsic, but depending 

 only on the caprice of the owner; though it is such an invasion of prop- 

 erty as may amount to a civil injury, and be redressed by a civil action. 

 Yet to steal a reclaimed hawk is felony both by common law and stat- 

 ute; which seems to be a relic of the tyranny of our ancient sportsmen. 

 And, among our elder ancestors, the ancient Britons, another species 

 of reclaimed animals, viz., cats, were looked upon as creatures of in- 

 trinsic value; and the killing or stealing one was a grievous crime, 

 and subjected the offender to a fine; especially if it belonged to the 

 King's household, and was the custos horrei regii, for which there was a 

 very peculiar forfeiture. And thus much of qualified property in wild 

 animals, reclaimed per industriam. 



