I. On the Occupation of Animals

I. Species of animals. Animals, as they are considered here, are distinguished into tame or domestic animals, animals made tame or tamed or gone wild, and wild or sylvan animals. Tame animals are those which by their nature serve man and therefore are said to lack liberty, such as horses, dogs, hens, and so forth. Animals made tame are those which have been made such by human industry that they serve man and therefore are said to have been deprived of primitive liberty, such as doves in a dovecote. Wild animals are those which are subject neither by nature nor by human industry to man, and therefore, unless they are captured, are said to enjoy full liberty, such as lions, birds, and fish. Therefore:

II. It is explained insofar as animals belong to no one, or become such, and therefore can be occupied. 1. Wild animals established in primitive liberty, or restored to it, belong to no one and therefore can be occupied. I said or restored to it; nevertheless they are not said to have recovered liberty immediately when they are taken away or have escaped, but it is required that they already cannot morally be recovered by the owner.

2. Tame animals have an owner, and remain in the property of the owner however much they wander, provided they are not lost; in that case the principles concerning the occupation of lost things are to be applied.

3. Animals made tame likewise have an owner, and remain in the property of the owner as long as they have not recovered primitive liberty, by which they become things belonging to no one. Hence:

a) Doves remain the owner's as long as they return to the owner's dovecote; and the same seems to be said even if they pass from one dovecote to another and no longer return. The reason is that they have not recovered primitive liberty, and therefore have not become things belonging to no one; but this is required so that they can be occupied by the owner of another dovecote. Nevertheless it must be seen whether custom perhaps permits that another's doves be enticed in certain ways and be able to be considered as one's own by the owner of another dovecote.

The doctrine set forth under a) is rather commonly denied; and, when the contrary opinion is posited, it is asked how far the owner of another dovecote can bring it about that the doves no longer return to the former dovecote. Now he cannot, without injustice, impede them by force, for example by shutting them in; for the owner has a right that no one use force against his thing. But he can arrange his own dovecote more conveniently and provide better food to his doves, permitting, though not intending, that another's doves pass into his dovecote and thus pass into his ownership.

b) A swarm of bees which has flown out from a hive remains the owner's as long as he can easily pursue and recover it, because it is not yet judged to have been restored to primitive liberty. But if he abstains from pursuing the swarm, he is judged to abandon it.

c) Deer and pheasants which the owner keeps in a wood or on an estate cannot be occupied as long as they retain their dwelling there. Understand, however, places not so vast that they rather enjoy natural liberty.

III. Mode of occupying animals belonging to no one. Wild animals established in primitive liberty are occupied: 1° if they are killed, or so wounded or entangled that morally they cannot escape (St. Alphonsus, III, 604); 2° if they are so enclosed by someone - for example by a narrow circuit or pond - that they are judged to be destitute of natural liberty. It is not enough that the wild animal be in your field, or be enclosed by fences so vast that it must be said to enjoy natural liberty, as deer in large forests or pheasants on large estates.

Question. Whether an owner, on whose land another has placed a snare without his consent, can take for himself or free the wild animal caught in that snare.

Response. Per se he cannot take it, because it belongs to the one who placed the snare; nor can he free it, because he would bring it about that another's thing became a thing belonging to no one. Yet he can keep from his land the one who placed the snare without consent; and if he does this, the wild animal can no longer be of use to the one placing the snare. With this posited, the wild animal can be released or taken by the owner of the land at will.

IV. The right of hunting and fishing. 1. A law which assigns the right of hunting and fishing to the owner of the land alone, considered according to its obvious sense, grants a strict right, so that no one can hunt or fish on another's land without the owner's permission. One who injures that right is bound to restitution, not indeed of the captured wild animal or its equivalent - since the wild animal belonged to no one and was truly occupied - but for the owner's lost hope of capturing those wild animals or fish. The same must be said of the right of fishing in rivers, which someone buys from the Government. Nevertheless, legitimate hunters and fishermen are not judged to require any other restitution beyond the legal penalty, if this penalty has been imposed on those who violate the right.

2. Laws which regulate the use of the right of hunting and fishing - for example by determining at what time or with what instruments hunting or fishing is permitted - are held to be merely penal (St. Alphonsus, III, 605, 614; I, 145).

Hunters, especially secret hunters, can sometimes sin gravely for other reasons, for example because of the danger of injuring officials, to which they expose themselves.