OUAL ARGUMENT OF JAMES C. CARTER, ESQ. 147 



II. Other animals that are not of a tame and domestic nature are either not the 

 objects of property at all or else fall lender onr other division, namely, that of quali- 

 fied, limited, or special proj)erty, which is such as is not in its nature permanent, hut 

 may sometimes subsist and at other times not subsist. In discussing which subject, 

 I shall, in the first place, show how this species of property may subsist in such 

 animals as are/ercc itatura', or of a wild nature, and then how it may subsist in any 

 other things when under particular circumstances. 



First, then, a man may be invested with a qiuxlified, but not an absolute property 

 in all creatures that are fcrce natiirw, either ])er induslriam, propter impotentiam, or 

 prop ter privi leg ium . 



1. A qualified property may siabsist iu animals /ow naturae, per industriam hominis, 

 by a man's reclaiming and making them tame by art, industry, and education, or by 

 so confining them within his own immediate power that they can not escape and 

 use their natural liberty. And under this head some writers have ranked all the 

 former species of animals we have mentioned, apprehending none to be originally 

 and naturally tame, but ouly made so by art and custom, as horses, swine, and other 

 cattle, which, if originally left to themselves, would have chosen to rove up and 

 down, seeking their food at large, and are only made domestic by use and famili- 

 arity, and are, therefore, say they, called mansueta, quasi ma^iui assueta. But how- 

 ever well this notion may be founded, abstractly considered, our law apprehends the 

 most obvious distinction to be between such animals as we generally see tame, and 

 are therefore seldom, if ever, found wandering at large, which it calls dominatce. 

 naturae, and such creatures as are usually found at liberty, which are therefore sup- 

 posed to be more emphatically ferw naturae, though it may happen that the latter 

 shall be sometimes tamed and confined by the art and industry of man — such as are 

 deer in a park, hares or rabbits in an inclosed warren, doves in a dove house, 

 pheasants or partridges in a mew, hawks that are fed and commanded by their 

 owner, and fish in a ])rivate pond or in trunks. These are no longer the property of 

 a man than while tliey continue in his keeping or actual possession; but if at any 

 time they regain their natural liberty his property instantly ceases, unless they have 

 animum revertendi, which is only to be known by their usual custom of returning. A 

 maxim which is borrowed from the civil law, "reverdendi animum videntur desinere 

 habere tunc, cum revertendi consuetudinem deseruerint." The law, 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 nevertheless my property, for he hath animum revertendi. So are my pigeons that 

 are fiying 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 knowledge, 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, aud 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 are feroi naturw; 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 orincluding 

 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 pro- 

 prietor; but a swarm, which 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 circumsfcauces 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, aflbrds great couu- 

 tenance to this doctrine, that a qualified proj^erty may be had in bees, in considera- 

 tion of the property 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 may be destroyed if they resume their 

 ancient wildness, and are found at large. For if the pheasants escape from the mew, 

 or the fishes from the trunk, and are seen wandering at large in their proper element 

 they become ferw naturcB again, and are free and open to the first occupant that has 

 ability to sieze 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 indefeasi\)ly 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 conmiou law to 

 steal such of them iT^raic lit for food as it is to steal tanie animals: bntuot so if they 

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



