Book II. another, there is a great difference made with respect to their several claffes, not only in our law, but in the law of nature and of all civilized nations. They are diftinguished into fuch as are domitae, and such as are ferae naturae: fome being of a tame and others of a wild difpofition. In fuch as are of a nature tame and domeftic, (as horfes, kine, fheep, poultry, and the like) a man may have as abfolute a property as in any inanimate beings; because these continue perpetually in his occupation, and will not ftray from his house or person, unless by accident or fraudulent enticement, in either of which cafes the owner does not lose his property": in which our law agrees with the laws of France and Holland". The stealing, or forcible abduction, of fuch property as this, is also felony; for these are things of intrinfic value, serving for the food of man, or elfe for the uses of husbandry. But in animals ferae naturae a man can have no absolute property. 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 fequitur ventrem" in the brute creation, though for the most part in the human species it difallows that maxim. And therefore in the laws of England, as well as Rome", "fi equam meam equus tuus praeg"nantem fecerit, non eft tuum fed meum quod natum eft." And, for this, Puffendorff gives a fenfible 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 expence and care wherefore as her owner is the lofer by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the cafe of young cygnets; which belong equally to the owner of the cock and hen, and shall be divided between them %. But here the reasons of the general rule cease, and "ceffante ratione ceffat et ipfa lex" for the male is well known, by his conftant affociation with the female; and for the fame reason the owner of the one doth not fuffer 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 divifion, namely, that of qualified, limited, or special property: which is fuch as is not in it's nature. permanent, but may fometimes fubfift, and at other times not fubfift. In difcuffing which subject, I shall in the first place fhew, how this species of property may subsist in such animals as are ferae naturae, or of a wild nature; and then, how it may fubfift in any other things, when under particular circumftances. FIRST then, a man may be invefted with a qualified, but not an abfolute, property in all creatures that are ferae naturae, either per induftriam, propter impotentiam, or propter privilegium. 1. A QUALIFIED property may fubfift in animals, ferae naturae, per induftriam hominis: by a man's reclaiming and making them tame by art, industry, and education; or by fo confining them within his own immediate power, that they cannot escape and use their natural liberty. And under this head fome writers have ranked all the former species of animals we have mentioned, apprehending none to be originally and naturally tame, but only made fo by art and▾ custom: as, horses, swine, and other cattle; which if originally left to themselves, would have chosen to rove up down, seeking their food at large, and are only made domestic by use and familiarity; and are therefore, fay they, called manfueta, quafi manui affueta. But however well this notion may be founded, abftractedly confidered, our law apprehends the most obvious diftinction to be, between fuch animals as we generally fee tame, and are therefore feldom, if ever, found wandering at large, which it calls domitae naturaes A a 4 and turae; and fuch creatures as are ufually found at liberty, which are therefore fuppofed to be more emphatically ferae naturae, though it may happen that the latter shall be fometimes tamed and confined by the art and industry of man. Such as are deer in a park, hares or rabbets in an inclosed warren, doves in a dovehouse, pheasants or partridges 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 poffeffion: 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 1. A maxim which is borrowed from the civil lawi; " revertendi animum videntur definere "habere tunc, cum revertendi confuetudinem deferuerint." The law therefore extends this poffeffion farther than the mere manual occupation; for my tame hawk that is pursuing his quarry in my prefence, 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 chafed out of my park or foreft, and is inftantly pursued by the keeper or forester : all which remain still in my poffeffion, and I still preserve my qualified property in them. But if they ftray without my knowlege, 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 ftill continues, and it is not lawful for any one else to take him but otherwise, if the deer has been long absent without returning, or the swan leaves the neighbourhood. Bees also are ferae naturae; 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 fame pur h Bracton. 1. 2. c. 1. 7 Rep. 17. 1 Crompt. of courts. 167. 7 Rep. 16. m Puff, 1. 4, s. 6. §. 5. Inft. 2. 1. 14. pofe, pofe, not to say in the fame words, with the civil law, speaks Bracton": occupation, that is, hiving or including them, gives the property in bees; for, though a fwarm 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 neft thereon; and therefore if another hives them, he shall be their proprie tor: but a swarm, which fly from and out of my hive, are mine so long as I can keep them in fight, and have power to pursue them; and in thefe circumstances no one else is entitled to take them. But it hath been also faid, that with us the only ownership in bees is ratione foli; and the charter of the forest P, which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in confideration of the property of the foil whereon they are found. In all these creatures, reclaimed from the wildness of their nature, the property is not abfolute, but defeasible: a property, that may be deftroyed 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 ferae naturae again; and are free and open to the first occupant that has ability to seise 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 indefeafibly 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 animals ; but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and finging birds; because their value is not intrinfic, but depending only on the caprice of the owner: though it is fuch an invafion of property as may n 1. 2. c. 1. §. 3. • Bro. Abr. tit. propertie. 37. cites 43 Edw. III. 24. P 9 Hen, III, c. 13. q 1 Hal. P. C. 512. r Lamb. Eiren. 275. * Rep, 18. 3 Inft. 109. amount amount to a civil injury, and be 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 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 intrinfic 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 houfhold, and was the cuftos horrei regii, for which there was a very peculiar forfeiture". And thus much of qualified property in wild animals, reclaimed per induftriam. 2. A QUALIFIED property may alfo fubfift with relation to animals ferae naturae, ratione impotentiae, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their nefts or burrows in my land, and have young ones there; I have a qualified property in those young ones till fuch time as they can fly or run away, and then my property expires * : but, till then, it is in fome cafes trespass, and in others felony, for a stranger to take them away. For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests a property in him of the young ones, in the fame manner as it does of the old ones. if reclaimed and confined: for thefe cannot through weakness, any more than the others through restraint, use their natural liberty and forfake him. 3. A MAN may, lafstly, have a qualified property in animals ferae naturae, propter privilegium: that, is, he may have the privilege of hunting, taking, and killing them, in ex |