ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 149 



in a yard, because thou tliey may be caught at any niouieut (lib. 3, sees. 14, 15, de 

 poss.). Third. Wild beasts, tamed artilicially, are likeued to domesticated animals 

 so loug as they retaiu the habit of returning to the spot where their possessor keeps 

 them {donee animurn, i. e., consuetiidinem, revertendi hahcnt). 



And another very celebrated writer, not upon municipal law, but upon 

 the law of jSTature and Nations, Puflendorf, says (lib. 3, cap. I, sec. 3) : 



Although a loss seems to refer properly to property, yet by us it will be generally 

 accepted as embracing all iujury that relates to the body, fame and modesty of man. 

 So it signifies every iujury, corruption, diminution or removal of that which is ours, 

 or interception of that, which in perfect justice we ought to have; whether given by 

 nature or conceded by an antecedent human act or law; or, finally, the omission or 

 denial of a claim which another may have upon us by actual obligation. To this 

 tends the 13th Dechimation of Quiutilian, where he plainly shows that one had 

 inflicted a loss who poisoned the flowers of his own garden AYher<^by his neighbor's 

 bees perished. Yet the convincing reason consists in this: Since all agree that bees 

 are a wandering kind of animate life, and because they can in no way be accustomed 

 to take their food from a given place; therefore, whenever tlicre is a right of taking 

 them, there also, it is understood, is laid a general iuj unction to be observed by all 

 "neighbors, to permit bees to wander everywhere without hindrance from anyone. 



The passage from Bracton which follows, I will not read because it 

 is expressed by Blackstone almost in the same terms in the passage 

 from that author which I have just now read. The doctrine is stated 

 very intelligently and clearly by Bowyer, a writer upon the Civil Law : 



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

 the sea, the heaveus, 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 same whether the animals or birds be caught on tin* premises 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 i)roperty of whoever occupies it. 

 The animal is understood to recover its natural liberty when it has vanished from 

 your sight, or is before your eyes under such circumstances that pursuit would be 

 diflicult. 



Here we find the celebrated maxim of Gajus: Quod mdlius est, id ratione naiurali 

 occupanti concediUir. It is founded on the following doctrine: Granting the institu- 

 tion of the riglits of property among mankind, those things are each man's property 

 which no other man has a right to take from him. Now, no one has a right to that 

 which is res nuUius; cousequently whoever possesses rem nuUius possesses that which 

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



I pass on to nearly the middle of page III: 



The general principle respecting the acquisition of animals ferw naturae is, that it 

 is absurd to hold anything to be a man's property which is entirely out of his power. 

 But Grotius limits the a]i))li cation of that principle to the acquisition of things, and 

 therefore justly dissents from the doctrine of Gajus given above, that tlie animal 

 becomes again res nuUius immediately on recovering its liberty, if it be difdcult for 

 the first occupant to retake it. He argnes that when a thing has become the prop- 

 erty of any one, whether it be afterwards taken from him by the act of man, or 

 whether he lose it from a natural cause, he does not necessarily lose his right to it 

 together with the possession ; but that it is reasonable to presume that the proprietor 

 of a wild animal must have renounced his right to it when the animal is gone 

 beyond the hope of recovery and where it could not be identified. He, therefore, 

 argues that the right of ownership to a wild animal may be rendered lasting, not- 

 withstanding its flight, by a mark or other artificial sign by which the creature may 

 be recognized. 



Mr. Justice Harlan. The last paragrapli in that citation is important. 

 Mr. Carter. The last paragraph from Bowyer is pertinent. It is on 

 page 11 L*: 



With regard to creatiires which have the habit of going and returning, such aa 

 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 dia- 



