148 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



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 property as may amount to a 

 civil injury, and he redressed by a civil action. Yet to steal a reclaimed hawk is 

 felony both by common law and statute; which seems to be a relic of thetyrauuy 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 intrinsic 

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

 oftender to a tine; especially if it belonged to the King's household, and was tiie 

 eustos horreiregii, for which there was a very peculiar forfeiture. And thus much of 

 qualified property in wild animals, reclaimed _per industriam^. 



The term which describes this species of property in wild auimals — 

 property per indvsfriam — indicates the foundation upon which it rests. 

 It is property created by the art and inilustry and labor of man. It 

 points out that tliis labor, art, and industry vroidd not be called into 

 activity, and would not produce its useful and beueiicial results, uidess 

 it had the reward of property in the product of it, and that therefore 

 the kiw assigus to such animals the benefits and the protection of 

 property for the purpose of encouraging the industry which produces 

 them. 



That is the language of Blackstone. It is taken almost bodily from 

 an earlier writer in the law of England — I mean Bracton, And it was 

 by him undoubtedly derived from the civil law in which all or nearly 

 all of these doctrines were establislied at a very early period indeed. 

 At a very early period in the development of the Koman law these 

 doctrines were established, I now call tlie attention of the Tribunal 

 to farther extracts from writers upon municipal law and I am going to 

 read from page 108 of our printed Argument, and tirst from "• Studies 

 in tlie Eoman Law " by Lord Makenzie, a well knoMai authority. He 

 says : 



All wild animals, whether beasts, birds or fish, fall under this rule, so that even 

 when they are caught by a trespasser on anotlier man's land they belong to the taker, 

 unless they are expressly declared to be forfeited by some penal law, (Inst., 2, 1, 12; 

 Gains. 2,60-69; Dig., 41, 1, 3, i)r. 55). Deer in a forest, rabbits in a warren, fish iu 

 a pond, or other wild animals in the keeping or possession of the first holder can not 

 be apju-oiiriated by another unless they regain their liberty, in which case they are 

 free to be again acquired by occupancy. Tauie or domesticated creatures, such as 

 horse, sheep, poultry, and the like, remain the property of their owners, though 

 strayed or not confined. The same rule prevails iu regard to such wikl auimals 

 already appropriated as are iu the habit of returning to their owners, such as pigeons, 

 hawks iu pursuit of game, or bees swarming while pursued by their owners (lust., 2, 

 1, 14, 15). 



Then again, a very ancient authority in the Roman law, Gaius, says 

 ( " Elements of Eoman Law " ) : 



Sec. 68. In those Avild aninuils, however, which are habituated to go away and 

 return, as pigeons, and bees, and deer, which habitually visit the forests and return, 

 the rule has Ijeen handed down that only the cessation of the instinct of retiirning 

 is the termination of ownership, and then the property in them is acquired by the 

 next occupant; the instinct of returning is held to be lost when the habit of returning 

 is discontinued. 



Another celebrated writer in the civil law, Savigny, says : 



With respect to the possession of animals these rules are to be apjdied thus: 

 First. Tame auimals are possessed like all other movables, i. e., the possession of 

 them ceases when they can not be found. Second. Wild animals are only pos.-iessed 

 so long as some special disposition (custodia) exists which enables us actually to get 

 them into onr power. It is not every custodia, therefore, which is sufficient ; whoever, 

 for instance, keeps wild animals in a park, or fish in a lake, has undoubtedly done 

 something to secure them, but it does not depend on his mere will, but on a variety 

 of accidents whether he can actually catch them when he wishes, consequently, 

 pds.scssion is not here retained; quite oiheiT,vise \Nith fish kept in a stew, or auiiuala 



' Book U, p. 301. 



