88 ARGUMENT OF THE UNITED STATES. 



All the useful domestic animals are held to be the subjects of exclu- 

 sive appropriation, however widely they may wauder from their mas- 

 ters. A man may assert his title to vast herds, which roam over bound- 

 less wastes, and which he may not even sec for months in succession, as 

 easily as to the cattle which are nightly driven to his home. He has 

 no proper possession of them other than that which the law supplies by 

 the title which it stamps upon them. And the obvious reason is that 

 from their nature and habits he has such a control over them as enables 

 him, if the law will lend him its aid, to breed them, in other words, to 

 cultivate them, and furnish the annual increase for the supply of human 

 wants, and at the same time to preserve the stock. In no other way 

 could this be accomplished. Without the protection afforded by the 

 safeguard of property the race of domestic animals would not have 

 existed. 



In the case of animals in every respect wild and yet useful, such as 

 sea fishes, wild ducks, and most other species of game, we find differ- 

 ent conditions. Here man has no control over the animals. They do 

 not, in consequence of their nature and habits, regularly subject them- 

 selves to his power. He cannot determine, in any case, what the 

 annual increase is. He cannot separate the superfluous increase from 

 the breeding stock, and confine his drafts to the former, leaving the 

 latter untouched. For the most part these animals are not polygamous, 

 but mate with each other, and no part of their numbers are superfluous 

 rather than another. All drafts made upon them are equally destruc- 

 tive; for all must be taken from breeding animals. No selections for 

 slaughter can be made. In short, man cau not, by the practice of art 

 and industry, breed them. They can not be made the subjects of hus- 

 bandry. And yet man must be permitted to take them for use, or be 

 wholly deprived of any benefit from them. No award of a property 

 interest in them to any man or set of men would have any effect in en- 

 abling the annual increase to be applied to satisfy human wants and 

 at the same time to preserve the stock. The law could not give to in- 

 dividual men that control over them which their nature and habits 

 deny; and the law never makes the attempt. The fish of the sea and 

 most of the fowls of the air are, and must forever remain, in every 

 sense wild. They are not, therefore, the subjects of property. 



And here nature, as if conscious of the inability of man to furnish 

 that protection to these wild races against destructive pursuit which 

 the institution of property affords in the case of domestic animals, her- 



