Grotius B. 2, Chap. 8, §. 2. How long Beasts Birds and Fishes, may be said to be no Body's, admits of some Dispute.2
§. 3. “The Roman Lawyers say, We lose our Property in wild Beasts, as soon as ever they recover their natural Liberty: But in all other Things the Property acquired by Possession does not cease with the Loss of Possession. Nay it gives us a Right even to claim and recover our Possession. And Whether they be taken away from us by another, or get away of themselves, as a fugitive slave, it is all one.”3
Inst. Lib. 2, Tit. 1, §. 12. “De rerum divisione et de [ad]
dominio. Ferae igitur Bestiae et Volucres, et Pisces, et omnia animalia, quae mari, Coelo, et Terra nascuntur: simulatque ab aliquo capta fuerint, jure gentium, statim illius esse incipiunt. Quod enim ante nullius est, id, naturali Ratione, occupanti conceditur. Quicquid autem eorum ceperis, eousque tuum esse intelligitur, donec tua custodia coercetur. Cum vero tuam evaserit Custodiam, et in Libertatem naturalem sese receperit, tuum esse definit, et rursus occupantis fit. Naturalem autem Libertatem recipere intelligitur, cum vel occulos
tuos effugerit vel ita sit in Conspectu tuo ut difficilis sit ejus Persecutio.”4
§. 13. “Illud quaesitum est, an si Fera Bestia ita vulnerata sit, ut capi possit, statim tua esse intelligatur. Et, quibusdam placuit, statim esse tuam et eousque tuam videri donec eam persequaris. Quod si defieris persequi: definere esse tuam, et rursus fieri occupantis. Alii vero putaverant non aliter tuam esse quam si eam ceperis. Sed posteriorem sententiam nos confirmamus, quod multa evidere soleant ut eam non capias.”5
Vid. same Law in same Words: Digest Lib. 41. Tit. 1. “De adquirendo Rerum Dominio.”6
§. 5. “Naturalem &c. illud quaesitum est an fera bestia, quae ita vulnerata sit, ut capi possit statim nostra esse intelligatur. Trebatio placuit statim nostram esse, et eo usque nostram videri donec eam persequamur. Quod si defierimus eam persequi: definere nostram esse, et rursus fieri occupantis. Itaque si per hoc tempus, quo eam persequimur, alius eam ceperit eo animo ut ipse lucrifacerit: furtum [videri]
nobis eum commisisse. Plerique non aliter putaverunt eam nostram esse, quam si eam ceperimus: quia multa accidere possunt, ut eam non capiamus: quod verius est.”7
2. Hugo Grotius, The Rights of War and Peace (London, 1738). The passage reads: “And to this Head [the Seizure or Possession of Things that have no Owner], in the first Place, is referred the Catching of Beasts, Birds, and Fish. But how long all these may be said to be no Body's, admits of some Dispute.” Id. at 248. The remainder of the section deals with the question whether the owner of an enclosed forest or lake has a property in the wild animals therein.
3. Grotius, War and Peace, bk. 2, ch. 8, §3. Quotation marks supplied.
4. This and the next paragraph are from the Institutes
of Justinian, that summa
of the Roman law which is the basis of all civilian studies. The edition used by JA cannot be determined, but the fact that he also quoted the Digest,
below, indicates that he had access to a copy of the Corpus Juris Civilis,
in which all of the works attributed to Justinian are contained. The passages here have been collated with Corpus Juris Civilis
(Altenburg, ed. C. H. Freiesleben, 1751). Quotation marks have been supplied. The translation of the passage quoted here follows, with a sentence omitted by JA given in brackets.
“Of the different kinds of things and of acquiring dominion of them. . . . Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. [So far as the occupant's title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it.”
The Institutes of Justinian 37 (Oxford, transl. J. B. Moyle, 1913).
5. The translation of bk. 2, tit. 1, §13 of the Institutes
is as follows:
“It has been doubted whether a wild animal becomes your property immediately you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of anyone who catches it: others have been of opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it.”
Institutes, transl. Moyle, 37.
6. Justinian, Digest,
bk. 41, tit. 1, also collated with the text of Freiesleben, note
above. The first four paragraphs of Title 1 repeat the beginning of §12 of the Institutes
quoted by JA, note
bk. 41, tit. I, §5. The sentence which JA sums up as “&c.” is the same as the last sentence of §12 of the Institutes,
above. The remainder of the paragraph is an elaboration of §13 of the Institutes,
“The following question has been asked: when a wild beast is so wounded that it could be taken, does the person [who wounded it] immediately become owner? Trebatius was of opinion that he did immediately, and that he must be held to retain the ownership so long as he kept on following the animal up, but that, if he relinquished the pursuit, his ownership ceased and the animal would once more become the property of whoever took it; so that if, at any moment while the pursuit lasted, some other person should capture it with a view to his own profit, he must be held to have committed a theft on the person first mentioned. A good many authorities hold that the party does not become owner unless he captures it, because there is a considerable chance of the capture not being made; and this is a better view to take.”
De Adquirendo: Translation of Justinian's Digest, Book 41, Title 1, 3 (Cambridge, transl. C. H. Monro, 1900).