their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as are domitæ, and such as are feræ naturæ: some being of a tame and others of a wild disposition. In such as are of a nature tame and domestic (as horses, kine, sheep, poultry, and the like), a man may have as absolute a property as in any inanimate beings; because these continue perpetually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property (a): in which our law agrees with the laws of France and Holland (6). The stealing, or forcible abduction, of such property as this, is also felony; for these are things of intrinsic value, serving for the food of man, or else for the uses of husbandry (c). But in animals feræ naturæ a man can have no absolute property. The brood of belongs to the owner of the tame animals belongs to dam; Of all tame and domestic animals, the brood belongs to the owner of the dam or mother; the English law agreeing with the civil, that "partus sequitur ventrem" in the brute creation, though for the most part in the human species it disallows that maxim. And therefore, in the laws of England (d), as well as Rome (e), "si equam meam equus tuus "prægnantem fecerit, non est tuum sed meum quod natum "est." And, for this Puffendorf (f) gives a sensible reason: not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expense and care: wherefore, as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case of young Cygnets exceptcygnets; which belong equally to the owner of the cock and ed. hen, and shall be divided between them (g). But here the reasons of the general rule cease, and "cessante ra (a) 2 Mod. 319. (b) Vinn. in Inst. 1. 2, tit. 1, s. 15. (c) 1 Hal. P. C. 511, 512. (d) Bro. Abr. tit. Propertie, 29. (e) Ff. 6. 1. 5. (f) L. of N. 1. 4, c. 7. II. A qualified or special property. As to the means of acquiring a qualified property in wild animals. 1. By reclaim them tame; or by confining them. "tione cessat et ipsa lex:" for the male is well known, by his constant association with the female; and for the same reason the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other. II. Other animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property: which is such as is not in its nature permanent, but may sometimes subsist, and at other times not subsist. In discussing which subject, I shall in the first place shew, how this species of property may subsist in such animals as are feræ naturæ, 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 qualified, but not an absolute, property in all creatures that are feræ naturæ, either per industriam, propter impotentiam, or propter privilegium. 1. A qualified property may subsist in animals feræ naing, or making turæ, 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 cannot 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 only 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 familiarity; and are therefore, say they, called mansueta, quasi manui assueta. But however well this notion may be founded, abstractedly 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 domita na[ *392 ] *turæ: and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically feræ naturæ, 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 dovehouse, pheasants or patridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of a man, than while they 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 (h). A maxim which is borrowed from the civil law (i); " revertendi animum vi"dentur desinere habere tunc, cum revertendi consuetudi66 nem deseruerint." The law therefore extends this possession farther 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 flying 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 forrester; 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 (k). 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, and it is not lawful for any one else to take him (1): but otherwise, if the deer has been long absent without returning, or the swan leaves the neighbourhood. Bees also are feræ naturæ; but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature, (h) Bracton, 1. 2, c. 1. 7 Rep. 17. (i) Inst. 2. 1. 15. (k) Finch, L. 177. (1) Crompt. of Courts, 167. 7 Rep. 16. But this property may be de stroyed by their regaining their liberty. And to the same purpose, as well as by the civil law (m). 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 antient 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 feræ naturæ again; and are free and open to the first occupant that has ability to seize 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 indefeasibly 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 common law to steal such of them as are fit for food †, as it is to steal tame (m) Puff. 1. 4, c. 6, s. 5. Inst. 2. 1. 14. (n) L. 2, c. 1, s. 3. (0) Bro. Abr. tit. Propertie, 37, cites 43 Edw. III. 24. (p) 9 Hen. III. c. 13. But it is not felony to steal such animals of a wild nature, unless they are so confined that the owner can take them whenever he pleases; or, if they animals (q): but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing birds (r); because their value is not intrinsic, but depending only on the caprice of the owner (s): though it is such an invasion of property as may *amount to a civil in- [ *394 ] jury, and be redressed by a civil action (t). Yet to steal a reclaimed hawk is felony both by common law and statute (u); which seems to be a relic of the tyranny of our antient sportsmen. And, among our elder ancestors, the antient 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 offender to a fine; especially if it belonged to the king's household, and was the custos horrei regii, for which there was a very peculiar forfeiture (w). And thus much of qualified property in wild animals, reclaimed per indus triam. 2. A qualified property may also subsist with relation to animals feræ naturæ, ratione impotentiæ, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their nests or burrows in my land, and have young ones there; I have a qualified property in those young ones till such time as they can fly or run away, and then my property expires (x): but, till then, it is in some cases trespass, and in others felo (q) 1 Hal. P. C. 512. (r) Lamb. Eiren. 275. (t) Bro. Abr. tit. Trespass, 407. (w) “Si quis felem, horrei regii cus"todem, occiderit vel furto abstulerit, felis summa cauda suspendatur, capite aream attingente, et in eam grana 66 "tritici effundantur, usquedum summi- (x) Carta de forest. 9 Hen. III. c. are not confined, unless they are reduced to tameness, and known by the thief to be so. (1 Hawk. b. 1, c. 33, s. |