110 ARGUMENT OF THE UNITED STATES. 



unless he has the intention to restore them. And these things are true, 

 unless sometimes from custom in some parts the practice is otherwise. 

 What has been said above applies to animals which have remained 

 at all times wild; and if wild animals have been tamed, and they by 

 habit go out and retain, fly away, and fly back, such as deer, swans, 

 seafowls, and doves, and such like, another rule has been approved, 

 that they are so long considered as ours as long as they have the dis- 

 position to return; for if they have no disposition to return they cease 

 to be ours. But they seem to cease to have the disposition to return 

 when they have abandoned the habit of returning; and the same is said 

 of fowls and geese which have become wild after being tamed. But a 

 third rule has been approved in the case of domestic animals, that al- 

 though tame geese and fowls have escaped out of my sight, neverthe- 

 less, in whatever place they may be, they are understood to be mine, 

 and he commits a theft who retains them with the intention of making 

 gain with them. This kind of occupation also takes place in the case 

 of those things which are captured from the enemy, as, for instance, if 

 free men have been reduced into slavery and shall escape from our 

 power they recover their former state. Likewise the same species of 

 occupation has a place in the case of those things which are common, 

 as in the case of the sea and the seashore, in the case of stones and 

 gems and other things found on the seashore. The same rule applies 

 to islands which spring up in the sea and to things left derelict, unless 

 there is a custom to the contrary in favor of the public treasury. 



[From Bowyer, Modern Civil Law, pnge 72.] 



Wild animals, therefore, and birds, and fish, and all animals that are 

 produced in the sea, the heavens, and the earth, become the property, 

 by natural law, of whoever takes possession of them. The reason of 

 this is, that whatever is the property of no man becomes, by natural 

 reason, the property of whoever occupies it. 



It is the same whether the animals or birds be caught on the prem- 

 ises of the catcher or on those of another. But if any one enters the 

 land of another to sport or hunt, he may be warned off by the owner 

 of the land. When you have caught any of these animals it remains 

 yours so long as it is under the restraint of your custody. But as soon 

 as it has escaped from your keeping and has restored itself to natural 

 liberty, it ceases to be yours, and again becomes the property of who- 

 ever occupies it. The animal is understood to recover its natural lib- 

 erty when it has vanished from your sight, or is before your eyes under 

 such circumstances that pursuit would be difficult. 



Here we find the celebrated maxim of Gajus: Quod nullius est, id ra- 

 Hone naturali occupanti conceditur. It is founded on the following 

 doctrine: Granting the institution of the rights of property among 

 mankind, those things are each man's property which no other man has 

 aright to take from him. Now, no one has a. right to that which is res 

 nullius; consequently, whoever possesses rem nullius possesses that 

 which no one has a right to take from him. It is therefore his property. 



But this general right of acquiring things by occupancy is subject to 

 an important qualification. Grotius justly argues that it is not an ab- 

 solute right, for though it is indeed founded on natural law, it is mat- 

 ter of permissive law, and not one which requires that full liberty 

 should be left to men to avail themselves of it, since such liberty is un- 

 necessary in many cases for the welfare of mankind, and may even, as 

 Blackstonc observes, be prejudicial to the peace of society if it be not 



