§ 2. On The Occupation Of Animals

41. Notions. For the sake of clarity three kinds of animals are customarily distinguished:

a) wild or sylvan animals, which naturally shrink from human fellowship and are accustomed to be constituted under the dominion of no one; for example lions, hares, deer, boars, fish, etc.

b) tamed or domesticated animals, which indeed of themselves shrink from the fellowship of men and live in liberty, yet by human industry and art have been brought under the perfect dominion of man; for example doves in a dovecote, bees in a hive, fish enclosed in a small pond, etc.

c) tame or domestic animals, which by their nature are accustomed to human society and serve domestic uses; for example sheep, cattle, hens, dogs. Some authors still distinguish animals gone wild, namely those which were tame or tamed, but afterward, having obtained liberty again, fled human society; for example doves no longer returning to their own dovecote. These animals are equated with wild ones.

Principles: 1. Wild animals (or even animals gone wild) belong to the first occupant.

The reason is that they belong to no one; and because things belonging to no one, both according to natural law and according to the civil codes, become the property of the first occupant.⁷ Whence, for example, one who catches a fish in the sea or a hare in open woods is their owner. The discussion will return below to the obligation of civil laws concerning hunting.

2. Tamed or domesticated animals remain the property of the owner so long as they have not escaped his custody or lost the custom of returning to it; but when they have become wild, they belong to the first occupant, like wild animals.

Concerning the first part of this principle there is no difficulty, and all think so, since such animals are private property. Whence he commits theft who, for example, attracts another's doves by more choice food and retains them. But if those tamed animals cause great damage to another, which their owner does not wish to repair, then no one is held to suffer this; but the one suffering damage can kill the damaging animals, lest they do harm. This case indeed can easily happen if hens and doves cause notable damage at the time of sowing and standing grain; likewise cats in others' houses or gardens often are harmful. Yet it is not licit to kill those animals, against the will of the owner, unless true necessity requires it, because, even if justice is not injured, nevertheless charity is often injured, and many quarrels and enmities can arise from it.

The other part of this principle has already been proved in the principle. Civil laws are accustomed to determine when animals gone wild pertain to the first occupant; these determinations indeed seem to oblige even in the forum of conscience. Thus, for example, Swiss law⁸ establishes that a swarm of bees which flies over into another's field still remains under the dominion of the prior owner, unless it has joined itself to the hive of another owner; while, on the contrary, German law decrees that a swarm of bees flying out immediately becomes the property of the first occupant, unless nevertheless the owner, by pursuing it, tries to bring it back.⁹

3. Tame animals always remain the property of their owner, even if they have departed from custody.

For concerning them one must judge as concerning other things of property. But when those animals have wandered off, the finder has the same rights and obligations as the finder of other movable things.¹⁰

⁷ Cf. Justinian, Inst. l. 2, 1, 12 and Cod. civ. Germ. § 958.

⁸ Art. 719 and 725.

⁹ § 961.

¹⁰ Cf. below n. 48, where finding is treated.

42. On The Right Of Hunting And Fishing.

Principle. A prince or republic can by various titles prohibit hunting, fowling, and fishing, not only on its own lands, but also in open places, and reserve them to itself.¹¹

It Is Explained. The chief title of this reservation is the common good. For experience establishes that hunting open and licit to all often causes great inconveniences, and on the contrary that reserved hunting brings many utilities to the common good. But I say: the reservation of hunting can touch only public places; for hunting in an entirely enclosed place pertains to the owner of the place. Hence, for example, no one can be impeded from catching fish in his own fishpond. This is clear of itself.

Corollaries. The Malice Of Illegal Hunting. 1. He who hunts, fowls, or fishes against a prohibition made by reason of public utility sins, unless, however, there is a sufficiently excusing cause.

The reason is that such a hunter transgresses a just law, which does not seem to be merely penal. That civil laws concerning hunting commonly are just cannot be denied. In reality it is of no little interest to the common good that wild animals not be totally destroyed, as happens in some uncivilized regions and as has happened also in our regions concerning some wild animals now no longer existing. On the other hand it is also necessary that the multitude of wild animals not increase too much. Hence the republic has the right and obligation of making laws concerning hunting. To this is added that from leased hunting no small monetary gain comes to the common good. Since these things are so, those modern authors seem to err who indiscriminately assert that all civil laws enacted concerning hunting are only penal. This assertion indeed lacks intrinsic and extrinsic foundation. Certainly many older authors taught thus, but their authority is not to be too greatly extolled in this matter, because today the hunting situation has been greatly changed. For in ancient times hunting was exercised by few men and was not accustomed to be leased. Moreover weapons were much more imperfect than now. Today, on the contrary, hunters are very numerous and not rarely even travel into distant regions for the sake of hunting. No small gain for the common good grows out of hunts, while on the contrary in ancient times hunting tended to the utility and delight of a few. From all these things it is clearer than light that modern hunting is not to be judged as authors of the sixteenth and seventeenth centuries judged. Although in practice neither mortal sin nor a grave obligation of restitution easily arises from illicit hunting, as will be clear from the things to be said below, from this it is not licit to conclude that all laws concerning hunting are merely penal laws. But to discern the gravity of this sin committed from illicit hunting, many circumstances must be considered:

2. It seems to be a grave sin if someone has brought into custom hunting gravely prohibited with lethal weapons;¹² but if there is question of hunting by means of net or hook or snare, it will not so easily be mortal sin, unless the damage inflicted is truly very grave.

The reasons why habitual hunting with lethal weapons, exercised against civil laws, is gravely illicit are: 1. the grave damage which in the lapse of time is caused in this way to those having the legitimate right of hunting; 2. the disordered passion which almost always arises from those illicit actions; for experience establishes that such hunters,¹³ on account of the passion for hunting, often neglect family affairs, expose their health to six hundred dangers, and are gradually brought to cruelty against men and beasts; 3. the most grave danger to which those hunters expose themselves; for not only will they have a most severe penalty if they have been caught by the keepers of the hunt, but they are also often placed in the most urgent peril of life, because almost always, in a case of encounter, a cruel fight arises between them and the keepers of the hunt, in which fight not rarely the death either of the keeper or of the illegitimate hunter occurs. Hence they are not worthy of absolution who do not wish to renounce prohibited and illegitimate habitual hunting with lethal weapons.

¹¹ Thus rightly Billuart, De iure et iust. diss. 4, a. 2, § 2.

¹² Thus also teach Göpfert, Moraltheol. II, n. 70 (5); Mausbach, Moraltheol. III, § 33 (2).

¹³ Commonly Wilddiebe, braconniers, poachers.

43. 3. Obligation Of Restitution. With regard to restitution to be demanded on account of the exercise of illicit hunting, account is not so much to be taken of how many and what sort of wild animals were taken (since wild animals belong to the first occupant, as was said above), but of how much damage was really and unjustly inflicted either upon the public good or upon the legitimate possessor of the hunting right.

Hence if by furtive hunting a hunting district can no longer be leased at so good a price, or if the proprietor or lessee of the hunting right has truly suffered grave losses, the furtive hunter is held to repair the damages inflicted. In practice, however, notable restitution is rarely to be demanded, because a) those who lease a hunting district are accustomed to intend not so much profit to be taken from the captured wild animals as delights and joy to be had from the very capture; therefore they do not suffer material damage; b) likewise it does not happen so often that a hunting district cannot be leased at a good price because of illegitimate hunters. But restitution must be made if, for example, all the fish of some brook have been killed with quicklime, or if many precious deer have been taken by very great and altogether extraordinary skill. On the contrary, he is not held to restore who takes or kills wild animals in order to avoid damages in his own fields or lands. For the government does not seem able to impede possessors of fields and other lands from warding off wild animals; whence if the government or lessee of the hunting right does not give sufficient compensation for damage caused by wild animals in private fields,¹⁴ then anyone can defend himself against such injustice, and, if it cannot conveniently be done otherwise, even by killing and taking the wild animals rushing into his own fields.

4. He who hunts or fishes in another's enclosed place, from which animals cannot escape, sins against commutative justice and therefore is held to restitution. But the quantity of restitution is to be measured not precisely from the price of the prey itself that was taken, but from the damage really caused to the legitimate owner.

In this case all admit that commutative justice is injured, since animals enclosed in this way do not have the liberty of escaping and therefore are to be equated with tamed animals. If the place of enclosure is so narrow that the animals can be taken very easily, then the furtive hunter is more a thief than a hunter, and therefore is held to restore the whole price of the captured animals. But if the place of hunting is sufficiently broad, so that the capture of animals is difficult and uncertain, the restitution to be made must be measured not according to the whole price of the captured animals, but according to the hope of capture which the owner would have had. In practice the norm of restitution to be made can with difficulty be assigned. Since, however, the hope of capture in vast woods or in a broad lake is not so great with regard to individual animals, and since the proprietors of hunting rights are commonly very rich men, I would not oblige a penitent under grave obligation to restitution unless the captured animals had a price of 300 francs; and in that case it would perhaps suffice to restore the fourth part, namely 75 francs. Thus, saving a better opinion.

5. When hunting has not been leased by the governmental authority of the community, as is accustomed to happen in certain rural regions, then a wild animal captured on the open land of another pertains to the hunter; nevertheless the proprietor of the land can impede the hunter from entering the land, and a fortiori can demand that damage perhaps arisen from the hunting be repaired to him; yet he cannot take the prey itself. The opinion of certain authors¹⁵ seems too casuistic, teaching that an animal caught in a snare on another's land indeed pertains to him who placed the snare, and that the proprietor of the land cannot usurp that animal, but can release it still living from the snare and, when the animal has been released, give it liberty for a little while and immediately capture it again, and thus appropriate it to himself.

¹⁴ Commonly Wildschaden, damage caused by game.

¹⁵ Cf. Lehmkuhl, Theol. mor. I, n. 1085, 6; Gury-Ballerini, Comp. Theol. mor. I, n. 572, q. 3, note.

44. Scholion. On The Common Estimation To Be Attended To Concerning Illicit Hunts. The same customs do not exist everywhere concerning illegal hunting. The confessor must indeed attend to those customs. For if in some region furtive hunts are commonly not judged gravely illicit and shameful, or if they are exercised even by men of good reputation, then the confessor can judge more mildly; but if the contrary custom is present, judgment must be made more severely. Likewise after a furtive hunt has been done, judgment is to be made more mildly, at least with regard to imposing restitution; on the contrary, before the fact the faithful are to be deterred from those furtive hunts.