112 ARGUMENT OF THE UNITED STATES. 



while they are wild any one may cut oft' the honeycombs, though the 

 owner of the land may prevent this by warning - off trespassers. And 

 a swarm fiyiug from a hive belongs to the owner of the hive so long' as 

 il is within his sight, but otherwise it is the property of whoever takes 

 possession of it. 



With regard to creatures whieh have the habit of going and return- 

 ing, such as pigeons, they remain the property of those to whom they 

 belong so long as they retain the animus revertendi* or disposition to 

 return. But when they lose that disposition they become the property 

 of whomsoever secures them. And they must be held to have lost the 

 animus revertendi as soon as they have lost the habit of returning. 

 Such are the doctrines of the Roman law, whieh are conformable to the 

 English law, with the qualification of Grotius, which is applicable to 

 the case of all animals ferae naturae, that is to say, that a mark or 

 collar prevents the rights of the proprietor of a wild animal being ex- 

 tinguished by its escape from his sight and pursuit. 



[From Cooper's Justinian (lib. II, tit. 1, sees. 11 et scq).~] 



Sec. 11. De I\'<'hi<s Singulorum. — There are various means by which 

 things become private property. Of some we obtain dominion by the 

 law of nature, which (as we have already observed) is also called the 

 law of nations; of others, by the civil law. But it will be most con- 

 venient to begin from the more ancient law; that law, which nature 

 established at the birth of mankind; for civil laws could then only 

 begin to exist when cities began to be built, magistracies to be created, 

 and laws to be written. 



Sec. 12. De Occupatione Ferarum. — Wild beasts, birds, fish and all 

 animals, bred either in the sea, the air, or upon the earth, so soon as 

 they are taken, become by the law of nations, the property of the captor ; 

 for natural reason gives to the first occupant, that which had no 

 previous owner; and it is not material whether the man takes wild 

 beasts or birds upon his own, or upon the ground of another; although 

 whoever hath entered into the ground of another for the sake of hunting 

 or fowling, might have been prohibited by the proprietor, if he had 

 foreseen the intent. Whatever of this kind you take, is regarded as 

 your property while it remains under your coercion; but when it hath 

 escaped your custody, and recovered its natural liberty, it ceases to be 

 yours and becomes the property of the first who seizes it. It is under- 

 stood to have recovered its natural liberty, if it hath escaped your 

 sight; or although not out of sight, yet if it can not be pursued and 

 retaken without great difficulty. 



Sec. 13. De Vulneratione. — It hath been questioned, whether a wild 

 beast belongs to him, by whom it hath been so wounded, that it may be 

 taken. And, in the opinion of some, it doth so, as long as he pursues 

 it; but, if he quits the pursuit, it ceases to be his. and again becomes 

 the right of the fust occupant. Others have thought that property in 

 a wild beast must attach to the actual taking it. We confirm this 

 latter opinion; because many accidents happen, which prevent the 

 capture. 



Sec.14. DeApibus. — Beesalso are wild by nature; therefore, although 

 they swarm upon your tree, they are not reputed, until they are 

 hived by you, to be more your property than the birds which have 

 nests there; so, if any other person inclose them in a hive, he becomes 

 their proprietor. Their honeycombs also, if any, become the property 

 of him who takes them; but clearly, if you observe any person entering 

 into your ground, the object untouched, you may justly hinder him. A 



