The Columbian University, WASHINGTON, D. C. 1. The University publishes in this form the results of original inquiry or independent research. 2. The University assumes no responsibility for expressions of individual opinion contained in publications made under its auspices. 3. All publications of the University are kept on sale at prices varying with the cost of publication. 4. All communications relating to the purchase of publications should be addressed to The Treasurer of the Columbian University, Washington, D. C. The price of this publication is twenty-five cents per copy. THE BERING SEA ARBITRATION; OR, "Pelagic Sealing" Juridically Considered According to a Particular Analogy of Municipal Law. In the primeval state of man property is supposed to have begun with the occupation of things for man's personal use. The Roman Law of Occupation was at once very simple and very strict. Wild animals, as being in their natural state res nullius, were held to be convertible into property by occupation; and this for the sufficient reason that what belonged to nobody could be made to belong to anybody who took it. Not, indeed, that mere taking gave ownership or value, but that it was only by the instrument of occupation, to the ends of possession, that wild animals could be made serviceable, and therefore valuable, to man. Hence, in enunciating the maxim of the Civil Law, res nullius occupanti conceditur, we must emphasize equally each word in the sentence. In consistency with this maxim, it was held in early Roman Law that the right of occupation which attached to wild animals was a pure ius hominis, belonging to any man who captured them, anywhere, for his personal benefit, and not an ius dominii resulting from ownership of the soil on which the wild animals were found. The owner of the soil had, indeed, a right to prohibit the entrance of a huntsman on his farm, but he could not claim the wild game which was killed or captured on his premises, even when the killing or capture was effected in violation of his interdict. His remedy was to sue for trespass. Yet as the land-owner, by his interdict, could maintain, de facto, the exclusive privilege of hunting on his own grounds, the game found on his soil could be placed practically at his exclusive command.* In cases, therefore, where the game found on land was sparse, casual, and uncertain, it could not be *Digest, xli, 1, 3, 22 1, 2. held to constitute any part of the fructus of the farm; but in cases where the game could be singled out, as an object of economic significance, it was competent to hold and consider it as fructus. Hence the doctrine of Julian, when, as we read in the Digest, “he denied that hunting was fructus of a farm, unless the fructus of the farm resulted from hunting."* In another part of the Digest we read, in consistency with this doctrine, that lucrative returns from fowling, fishing, and hunting pertained to the fructuary,† and even where the hunting was not very important, because it took place in the woods and mountains of a landed estate, we are told that it could be "fairly asserted" (that is, could be asserted in equity) to constitute a part of the usufruct; while this was clearly the case where a hunting-staff or a working-plant was connected with the estate for the express purpose of capturing game.§ With regard to animals which were partially domesticated, and which, by reason of their habits, whether natural or acquired, could be put under a partial human control, a somewhat different rule obtained. To the extent in which these animals, by virtue of their habit for locality, could be made self-subservient to the uses of man, it was held that they became the qualified property of the owner who had domesticated them, or who, by purchase or otherwise, had a right to profit from their custody. The rule under this head, as laid down by Gaius, is as follows: "As to animals which, from habit, are wont to go away and return, such as pigeons and bees, likewise deer that are wont to go to the woods and return, we have this rule handed down, that if they cease to have a disposition to return [revertendi animum] they cease also to be ours, and may become the property of the first takers; and they seem, moreover, to cease to have a disposition to return when they may have abandoned the habit of returning." || * Digest, xxii, 1, 26: "Venationem fructus fundi negavit esse, nisi fructus fundi ex venatione constet." † Digest, vii, 1, 9, ? 5. Digest, vii, 1, 62. Digest, xxxiii, 7, 12, ?? 12, 13. || Gaius, ii, 68: In iis autem animalibus quæ ex consuetudine abire et redire solent, veluti columbis et apibus, item cervis qui in silvas ire et redire solent, talem habemus regulam traditam, ut si revertendi animum habere desierint, etiam nostra esse desinant, et fiant occupantium; revertendi autem animum videntur desinere habere cum revertendi consuetudinem deseruerint. The same doctrine meets us in the Digest * and in the Institutes.† It is easy to perceive the reason and ground of this rule of law. Certain animals, by reason of their animus revertendi, can, without their knowing it, be made subservient to the economic control of man. Sic vos non vobis mellificatis apes. The animus revertendi, as cited by Gaius, is not an index of mansuetude. It exists alike in wild bees and in tame bees,‡ but in the case of the latter it has been seized on by man as an instinct which, under appropriate arrangements (that is, by the inclosure of bees in artificial hives), can be made tributary to economic ends at a spot selected by man and under his control. The animal's state of mind is important only. because it serves as an index of the owner's prospect of retaining the animal in his possession. The material with which he Speaking in the language of the schools, we may say that man is the efficient cause of bee husbandry. makes his hives is the material cause. structs hives are the instrumental cause. scribe the shape and structure of the hives are the formal cause, while economic gain is the final cause of the whole proceeding. But in this array of causes, it is the animus revertendi which conditionates the whole process, and which, at bottom, is the conditionating factor of the whole process. As the logic of causation shifts with the point of view, if the point of view be shifted from the hives to the bees themselves it must be said that the bees are the material cause of bee husbandry, and that the animus revertendi is the instrumental cause of bee husbandry. From this analysis it would appear that it is the qualified dominion of man over animals having an animus revertendi (that is capable of being turned to economic uses) which gives rise to a qualified property in them. The right of free occupation comes, as to them, under restriction, because they are already the subjects of a prior, though qualified, occupation. As the Commentators say, the occupation of animals which are by nature feræ naturæ implies four conditions: First, The animal at * Digest, xli, 1, 5. † Institutes, ii, 1, 15. Pufendorf is careful to note this fact, as bearing on the logic of the law. He says: "Consuetudinem ad alvearia sua redeundi non adsuetudine hominum, sed propriæ naturæ instinctu, habent; de caetero plane indociles." Puf. De Jure Naturæ, Lib. iv, 6, 5. the time of capture must be really and entirely res nullius. Secondly, It must be taken with a view to possession. The man who kills a wild bird merely to show his skill as a marksman is not an occupant in even an inchoate sense. He may be shooting merely for a wager. Thirdly, The desire of possession, the animus possidendi, must be authenticated and effectuated by some definitive act which translates the desire of possession into an accomplished fact. The man who stumbles on a honeycomb in the forest and who desires to possess it, does not make it his by marking the tree on which he finds it, however fixed and sincere may be his purpose to return and take the comb into possession at a future day.* Fourthly, The thing occupied must be of some value in use or exchange; otherwise the animus possidendi would not arise, and the act of possession would not be put forth. Rats and mice have an animus revertendi which man can only deplore in economics, because their animus revertendi cannot be made important from a utilitarian point of view. Dogs have an animus revertendi, but it is held by Blackstone that dogs have no intrinsic value at Common Law, as being "creatures kept for whim and pleasure" and not for food. Dogs have intrinsic value in Greenland, because there they are made ancillary to economic ends. A pack of dogs kept as an instrument of hunting would seem to have intrinsic value. We see, therefore, that the law of occupation, as to animals, has its ultimate foundation in the destination of creatures feræ naturæ to subserve purposes of human utility. Hence, it does not surprise us to find that when the Roman jurists came to expound the law of usufruct they brought that law into careful coördination with the law of occupation. The law of occupation was subordinated to the law of usufruct. Whatsoever grew on a farm and whatsoever could be gathered from a farm (under the limitations prescribed by usufructuary law, to wit, ut boni viri arbitratu fruatur) was held to be fructus of the farm, for the reason that it had value in use and value in exchange. Hence, if there were bees on a farm, it was held that the usufruct of them pertained to the fructuary. The reference here is not to swarms of wild bees flying across the fields or settling by accident on a tree, for they are not property, but refer *Glück: Ausführliche Erläuterung der Pandecten, Ser. xli, xlii, 174; cf. also 7 Johnson (N. Y.), 16. † Digest, vii, 1, 9, ¿ 1. Digest, xlvii, 2, 26. |