Property in animals; game and poaching

622. Notions. 1. Game in the juridical sense is a contract by which those playing agree between themselves concerning a certain price to be handed over to the victor as a reward.

a. Game in the moral sense signifies a certain artificial operation ordered to relaxation of the mind or exercise of the body, which the virtue of eutrapelia moderates. Frequently that game is joined with game taken in the former sense.¹

b. Game differs from wagering almost only in the cause on account of which the victor acquires the reward: for in wagering the reward is constituted for him who will have attained the truth; but in game the price is constituted for the happy success of the game.

c. The object of this contract is the right of playing and the hope of gaining, which those playing mutually hand over to each other.

2. Games are divided: a. into aleatory, in which the event depends chiefly on chance, as in a game of dice; b. into industrial, in which the event depends chiefly on the aptitude of the player, as in a game of disks or chess; c. into mixed, in which the event depends both on chance and on the aptitude of the player, as generally in a game of cards.

¹ Cf. Ballerini-Palmieri III, n. 904.

623. In order that game be a just contract, it is required:

a. That frauds and illicit arts not be employed. He who gains through frauds is bound not only to restore the gain, but also to compensate the hope of victory which the fellow-player would have had if no frauds had occurred.

Those arts are illicit which are opposed to the rules of the game, which either received custom or the common consent of players has determined. Of this kind are: deliberately to place oneself so that the other's cards can be known, to mark cards with signs, etc. But it is not illicit to use those industries which are not opposed to the rules of the game or to received custom, as to inspect the other's cards from his negligence alone, to simulate fear so that the other may become bolder, etc.

b. That among those playing there be moral equality as to the hope of gaining and the danger of losing: for if on one side there is certainty of gaining and on the other equal certainty of losing, there is no object of the contract, which is hope of gain with danger of damage. Hence if someone most skilled in a game plays with another unskilled in the game, the latter of himself is not bound to pay the reward, nor can the other accept and retain it.

He who is ignorant of the greater skill of another player is not bound to pay the price of the game if he was induced by deceit by the other to playing; but he is bound to pay it if, without deceit, he determined himself to playing only from error, even antecedent error. He who certainly knows the greater skill of the other and nevertheless plays with him must pay the reward, because he is considered to yield his own right.

c. That the contract be entered freely; therefore he who plays with a half-drunk person must restore the whole gain, because this person cannot enter a valid contract.

He who drew another to playing by fear having been struck into him must restore the gain. Although authors almost agree in this affirmation, nevertheless not all assign the same reason for the affirmation. For some obligate him to restitution because a contract entered from fear is valid indeed, but rescindable on the part of him who suffered the fear. Others obligate him because the one striking fear inflicted injury on the other and therefore must repair the whole damage which arose from the injury.¹

d. That the player be able justly to alienate the thing which he exposes in the game; wherefore he commits injustice who exposes another's thing, or indeed his own thing whose administration he does not have, as can happen to children of the family, or which he cannot lose without injustice, as happens to those who cannot pay debts.

alpha. He who exposes another's thing in a game can require and retain the gain if he himself wins. The victor who gained another's thing must return it to the owner; but the loser must keep the victor harmless or, if the victor does not restore the thing to the owner, repair the damage to him.

beta. A player who does not have the means from which he could pay if he were conquered cannot require the reward, because the contract is invalid: for equality among those playing is lacking, since he who cannot pay handed over to the other a hope of gaining which is of no value.

¹ Cf. Lugo, disp. 31, n. 28; Lessius, l. 2, c. 26, n. 9; St. Alphonsus, n. 880.

624. In order that game be a licit contract, it is required:

a. That the game itself be honorable both in itself and in its circumstances, that is, by reason of time, place, persons, mode, etc. If the game is dishonorable, the victor nevertheless can require and retain the reward, provided the game was just.

In order that a game be licit, it is not necessary that it be undertaken for a positively honorable end; wherefore he does not sin, not even venially, who plays either uniquely or principally to receive gain: for any indifferent action can, even with other ends passed over, be ordered without sin to that end to which it is useful.¹

b. That the reward exposed not be excessive: for if a great sum of money is exposed, of itself a sin of prodigality is committed, with which per accidens other sins are customarily joined, as if the player makes himself unable to pay debts or sustain his family.

alpha. There are those who say that a game in which a great sum of money is exposed at one time is unjust;² but since this opinion does not exceed probability, the victor cannot be obligated to return the gain, but neither can the loser be obligated to pay it.

beta. If some game is prohibited by positive law, one must distinguish: if the law prohibits and invalidates the game, the price can neither be required nor retained; but if the law merely prohibits the game, the price can be required and retained.³

¹ Cf. Lugo, disp. 31, n. 4; Ballerini-Palmieri III, n. 906.

² Among the authors who say this game is unjust, St. Francis de Sales also is counted (Philoth., part 3, n. 29). Cf. Gury I, n. 949; Ballerini-Palmieri III, l.c.

³ C.A. Section 1271 ss. declares that a prohibited game produces no obligation, which seems to have to be understood of civil obligation: for just as it denies to the victor in a game of this kind an action for requiring the reward, so in like manner it denies to the loser an action for seeking back a price already paid; likewise C.G. Section 762.

Animals are either domestic, tamed, or wild. The property in domestic animals such as dogs, sheep, kine, pigs, always remain with the owner, however much they may stray, as long as they are not so utterly lost that there is no hope of finding the owner. Such animals always belong to their original owner as long as he can assert his ownership over them, in the same way as his household furniture belongs to him. Wild animals which enjoy their natural liberty and go where they please belong as a general rule to him who first captures or kills them. Such a one makes them his own by occupation, for before he took them they belonged to no one. English law has modified this general rule to some extent, for if a trespasser capture or kill a wild animal on another person’s land, it belongs to the owner of the soil on which it has been started and killed; if a trespasser start an animal on one person’s property and kill it on another’s, it belongs to the owner of the former. These rules of positive law give the owner of the property at least the right to vindicate his claim, which cannot then be lawfully resisted by the trespasser.

Animals which have been tamed, such as pigeons, bees, young pheasants that have been hatched under hens, belong to their owner as long as they retain the habit of returning to his premises, but if they lose that habit and recover their natural liberty, they belong to the first who takes them, like wild animals. Animals which are enclosed like deer in a park, rabbits in a warren, or fish in a pond, belong to the owner of the enclosure, as long as he can exert his control over them. If they recover their natural liberty, they are primi occupantis.

A poacher may be guilty of sin by damaging the property of another by trespassing on it, and from the fact that he exposes himself to grave personal risk or to the danger of violently resisting lawful authority if he is caught. By the mere fact of capturing wild animals he does not commit a sin against justice, unless he kills so many in a particular property that the right of killing game therein is seriously lessened in value, and the owner in consequence suffers considerable loss, because, for example, he cannot let it at so high a price.

I. Object of the precept. On feasts of precept the following are prohibited: 1. forensic acts; 2. unless legitimate customs or particular indults provide otherwise, public market, fairs, and other public sales and purchases; 3. servile works (can. 1248).

1. Forensic acts. Judicial acts are understood (both those concerning secular causes and those concerning ecclesiastical causes), which are exercised with judicial solemnity or apparatus, such as the citation of witnesses, the request for a judicial oath, the judicial investigation of a case, the pronouncement and execution of a sentence. But it is lawful to excommunicate, to dispense; likewise to perform preparatory actions privately, for example to consult an advocate, prepare a defense, etc. - Besides, where the prohibition is not observed, those whom it concerns are commonly excused on account of avoiding harm (St. Alphonsus, III, 284).

2. Public market. Therefore, of itself it is not lawful to sell or buy in public shops, much less in the forum. Yet custom and competition permit in many places that food and drink be sold in public shops, likewise, especially in the country, clothes, shoes, etc. (St. Alphonsus, III, 286). For the rest, however, today on account of the laws in force, those who sell with open doors are less easily excused.

3. Fairs; these likewise can be permitted on account of custom; if they fall on a feast day, in many places they are anticipated or deferred; but if this is not done, many nevertheless can attend fairs, either on account of custom or on account of an excusing cause (St. Alphonsus, III, 286).

4. Other public sales. Therefore purchases and sales made privately, even before a notary, are not prohibited. Contracts of lease, exchange, etc., are equated with purchases (St. Alphonsus, III, 285). Custom here and there permits some public sales, for example of doves which in French are called pigeons-voyageurs.

5. Servile works. Works are called servile which are exercised by the powers of the body rather than of the soul, and immediately serve the utility of the body, for example rural works, such as plowing, etc.; works of the mechanical arts, such as the shoemaking art, etc. They are called servile because they were formerly done by servants. Liberal works are those which are done by the powers of the soul rather than of the body, and immediately serve the utility of the soul or its cultivation, for example to study, to read, to teach, to play the organ, etc. They are called liberal because they were chiefly exercised by free men. Common or intermediate works are called those which are exercised promiscuously by all, such as making a journey, hunting, etc. (St. Thomas, II-II, q. 122, a. 4, ad 3; St. Alphonsus, III, 272, 279).¹ Besides, note that the servility or liberality of a work depends neither on the intention of the one working, so that it makes no difference whether it is done for the sake of utility or recreation, for oneself or for another, for gain or gratuitously; nor on bodily fatigue. Hence:

a) Liberal and common works are permitted, except those about which something was said under I, 1, 2, 3, and 4. Servile works are prohibited by the Church because "they are contrary to the observance of the Sabbath, insofar as they impede man's application to divine things" (St. Thomas, cited place). From the prohibition, however, are excepted works necessary for the nourishment and arrangement of the body and the house, which cannot conveniently, or are not customarily, anticipated, such as cooking food (even food to be prepared with greater skill, such as cakes), making beds, cleaning the house or clothing (St. Alphonsus, III, 298).

b) Concerning some works it is more difficult to determine whether they are servile, or at least whether and to what extent they are lawful. Practically these things can be established.

a) It is lawful to write and transcribe (even musical notes); likewise to correct books and to exercise other light accessory labors, for example by drawing necessary lines and gluing superposed paper; likewise it is lawful to form artists' drawings (St. Alphonsus, III, 279).

b) It is lawful to paint, provided one stops at the act of painting. "The reason is that painting, although it requires a material operation, nevertheless does not seem properly able to be called a servile action; indeed, it seems rather to be called liberal. For, just as writing expresses internal concepts, so painting expresses images of things" (St. Alphonsus, III, 280). It is said, provided one stops at the act of painting; for it is unlawful to grind and mix colors, to prepare and stretch panels. Likewise it is forbidden to dye cloths or walls.

c) What has been said about the act of writing and painting is also to be applied to some similar acts. Hence it is lawful: 1. to paint with a needle, but not to sew, nor to do what is called in Dutch breien, in French tricoter, in German stricken (cf. St. Alphonsus, III, 281); 2. to arrange type (St. Alphonsus, III, 279, 282), which nevertheless by common estimation in a public workshop is held to be unlawful; 3. to exercise the photographic art, insofar as it is done without notable labor, for example to form what is called a negative image; 4. to sculpt, insofar as it is a question of the final perfection of a statue; otherwise "the sculptural art commonly, at least in the estimation of men, is numbered among the mechanical arts" (St. Alphonsus, III, 281).

d) Whether to lead draft animals, ships, and carts loaded with merchandise is lawful in itself is disputed; but the accompanying labor of loading and unloading burdens seems to be unlawful or lawful according as it is great or slight (St. Alphonsus, III, 276 ff.).

e) Hunting, fishing, and fowling are lawful, unless they are done with great apparatus and labor (St. Alphonsus, III, 283).

f) Milling, in whatever way the mill is moved, is lawful, provided the application of man is moderate. Yet in our regions custom is opposed (St. Alphonsus, III, 277).

g) Finally, various works to be performed for the convenience of some establishment seem lawful, which bring with them scarcely any bodily labor, for example microscopic examination of milk or of some other material; nevertheless by common estimation they are held to be unlawful if they are performed in the public establishment itself.

¹ This distinction of works used to rest, and still rests, partly on custom; which custom indeed has been tempered somewhat, so that, for example, works which formerly could be servile are now common. We have tried to treat the matter in such a way that every difficulty arising from different custom seems excluded.

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.

V. Hunting. They should not indulge in hunting, and should never exercise noisy hunting (can. 138). Hunting - by which bird-catching is also comprehended - is distinguished as twofold, noisy and quiet. Noisy hunting is that which is done with great tumult and noise of weapons, dogs, and beaters; quiet hunting is that which is done with snares and nets, or even with a shotgun, but without the aforesaid noise. Therefore:

1. Noisy hunting is forbidden simply; but quiet hunting, if it is done moderately and without scandal, is not prohibited. Nevertheless, particular statutes or precepts should be attended to; since the Ordinary, if a just cause is present, can altogether prohibit hunting with a shotgun, though not with a censure added, unless for grave and special causes.¹

2. Noisy hunting exercised without grave scandal and not frequently is not mortal (cf. St. Alphonsus III, 606; Homo Apostolicus, tract 10, n. 72).

3. Finally note that fishing is forbidden by no canon.

¹ Cf. Sacred Congregation of the Council, Gnesen and Posen, 11 June 1921 (A. A. S. 1921, p. 498).

Negative Duties of Clerics.—The negative duties of clerics are the avoidance of certain acts, occupations, or amusements forbidden as worldly, undignified, dangerous, distracting or scandalous (I Thess., v. 22; II Tim., ii. 4).

(a) Forbidden Acts.—A cleric may not go surety without permission, lest he or his church be involved in scandalous embarrassments (Canon 137); nor engage in trade, lest he be distracted from his spiritual duties and exposed to the danger or suspicion of injustice or greed (Canon 142; for penalty attached see Decree of the Sacred Congregation of the Council, AAS, 42-33D).

(b) Forbidden Occupations.—These include, first, employments and pursuits unbecoming to clerics (such as those of butcher, actor, innkeeper); next, those that are incompatible with the ministry (such as the practice for profit of the medical profession, public magistracies, government jobs, civil court functions, legislative offices, Canon 139); finally, those that are contrary to the mildness that should distinguish clerics (viz, the occupation of fighting man or soldier, Canon 141; see also Canon 984 on executioners). But exceptions may be made for a just cause.

(c) Forbidden Amusements.—Clerics should not take part in undignified diversions or cruel sports, such as the hunting of big game with great uproar of dogs and guns (Canon 138) or in gambling, and they should not enter saloons or similar places (Canon 138). Clerics are also forbidden to assist at unbecoming shows, performances, dances, or at any theatrical entertainment where their presence gives scandal (Canon 140). To gamble much (say, several times a week and for a considerable time at each game) is considered a serious matter; but it is not sinful to indulge in a game of chance now and then, if the stakes are moderate and there is no scandal.

How are the various animals distinguished? As regards hunting and fishing, animals are of four kinds. Some are tame or domestic, which from their disposition enjoy human association, such as horses, sheep, hens, etc. Some are wild, or beasts, which from their disposition flee human association, such as wolves, deer, hares, birds, fish, etc. These sometimes exist in their natural liberty, as a deer in a forest open on every side, a fish in the sea; sometimes, with such full liberty removed, they are enclosed by some custody, as a deer in a grove surrounded by high hedges, etc. Some are tamed, and these are wild animals or beasts which are made tame by human industry, and are cared for in such a way that they have the custom of going away and returning, as doves in a dovecote, rabbits in a warren. Finally some are become wild, and these are animals which, after putting off a prior custom, either assume their former wild nature or contract it. C. B. 960.

How do laws which prohibit hunting and fishing bind? - Laws which prohibit hunting and fishing at some determined time, or with some determined instruments, or without payment of the tax for the due faculty, according to the common and probable opinion, are merely penal laws; and therefore they do not oblige except to undergoing the fine and penalty, if someone is caught. The reason is that laws of this kind regard only a material and external good, and indeed one not of great moment: the due procreation and multiplication of fish or birds. L. 1. 1. n. 145.

In Germany, however, they seem preceptive from C. B. 958, which invalidates occupation of a thing legally prohibited, or when by apprehension of possession another's right is harmed; unless, namely, some other custom at least obtains as to hunting, or unless it is said that the law in the case does not really prohibit occupation of such a thing, but only in such a mode, time, etc. Laws which prohibit hunting or fishing in a closed private estate are prohibitive laws in conscience. For these laws confirm the natural law, lest anyone use another's thing against the owner's will and cause him damage. Therefore those transgressing these laws sin against commutative justice and are bound to compensation for damage. L. 604; C. I. 712; Inst. 1. 2. t. 1. § 12. Laws which prohibit hunting or fishing in some public place, by force of a contract entered, for example of lease, are prohibitive laws in conscience, by force of commutative justice.

Therefore, if someone in that place were to take so great a multitude of fish or other animals that another's right would be notably harmed, he would sin gravely against commutative justice and would be bound to compensation for damage. L. 605, 614, 617; H. A. tr. 10. n. 71; Lugo d. 6. n. 189. Laws prohibiting hunting and fishing in a determined place, from an exclusive privilege conceded to others, are likewise prohibitive in conscience; for they prohibit violation of a conceded right. But if there is a simple reservation, "Diana with Dic. etc. excuse the hunter from restitution and from grave sin, if the places are not enclosed.

Lessius also admits this, if the damage was not notable, since the wild animals are not of great price, or are not many; for then he says that the prohibition, from the common judgment, is understood as made only under venial sin. Indeed he adds that hunters can always be excused from restitution when a penalty has been enjoined, because Princes then seem to intend that alone." L. 605. Likewise, if there is a simple license, even though it is obtained only by money, others hunting or fishing without that license do not injure commutative justice; nor do they regularly injure legal justice, because the law is then commonly held as penal; and therefore one is bound only to undergo the penalty, if he is caught.

As to animals captured contrary to the aforesaid laws prohibiting hunting and fishing: if they were under the ownership of the owner of the place, or of the one having the right either from contract or from privilege of hunting or fishing, they must be restored, since someone by capturing them cannot make them his own. But if those animals were not under the aforesaid ownership; since, for example, although fish are in some large lake, or wild animals in some large enclosed forest from which they cannot go out, nevertheless they can still escape the nets of him who wishes to catch the fish, or wander and escape the hunter; then no restitution of them is to be made, since the one catching them makes them his own. Lugo d. 6. n. 72. A wild animal becomes that of the first occupier, even if it is caught on another's land.

The reason is that although the wild animal exists on another's land, and therefore passing over there is illicit, nevertheless it does not exist under another's ownership; unless the land is closed, so that the wild animals cannot go out from it and can easily be caught there; for these are then considered to have lost liberty and to belong to the owner of the land. Likewise, although the owner of a territory can appropriate to himself the right of hunting in his own territory, nevertheless he cannot appropriate a free wild animal, since he has title of property only to that territory, not to the animal. But the owner who has his own right of hunting in some territory can not only release a wild animal caught in a snare, but also take away the snare or other instrument, without being bound to its restitution, as theologians commonly teach.

The reason is that such taking away is considered by common custom as a penalty for the right of hunting having been injured. Hence, since by this title he can release the wild animal, by the same title he can also retain it for himself. Inst. 1. 2. t. 1. § 12; C. L. 384 ff. If the owner of the land from his magnificence thinks little either of the captured wild animal to be restored, or of the damage inflicted to be repaired, and is content with the fine or penalty alone, so that the wild animals may be safe, neither restitution nor reparation of damage is to be urged, even if perhaps the fine also was not paid, because the crime remained hidden. - But where damage must be repaired, an estimate is to be made according to the judgment of a prudent man, with attention to all the circumstances.

For this, if the wild animal was not under another's ownership, does not depend on the price of the captured wild animal, but on how much it mattered to the owner, or to the one having the right of fishing or hunting, that the animals not be captured, because more animals would have been captured by him or by his men, unless someone had unjustly taken them. Therefore, if that act, with attention to the multitude of wild animals, did not prevent him from capturing as many as he wished, nor caused their price to decrease, reparation of damage is not to be urged. L. 604, 605.

Are fishing and hunting prohibited to clerics? - Fishing is lawful, as something which by its nature is altogether quiet, nor is it read anywhere as proscribed. But frequent and clamorous hunts are interdicted, namely those which are done with great apparatus of men, dogs, hawks, nets, and arms. If they are done rarely, they lack grave fault; if they are quiet, they are lawful, unless they are positively prohibited by the Ordinary. But so that they can be exercised with arms, the permission of the Ordinary is needed. C. 1 de Cler. ven.; C. 1 Ne cler. vel mon.; Trent s. 24, c. 12 de R.; Benedict XIV de Syn. l. 11, c. 10, n. 6-10; L. l. 3, n. 606; S. Th. 2. 2. q. 168, a. 2.

212. Three kinds of animals can be distinguished in relation to occupation: (a) wild, or sylvan, which enjoy natural liberty and have no owner; such as lions, eagles, vultures, hares, fish, etc.

(b) Tamed, or trained, which, although by themselves of a wild nature, have been subjected to dominion by human industry, such as doves returning to the dovecote, bees in a hive; to these can be added wild animals enclosed in places from which they cannot escape.

(c) Tame, or domestic, which are so accustomed to the society of men that they no longer flee from the power of the owner, but serve domestic uses, e.g., sheep, hens, dogs, horses, etc.

213. Principles. Wild animals, which enjoy native liberty, become the property of the first occupier; for they truly belong to no one, and therefore can legitimately be occupied and retained by the successful captor. But they are judged occupied when they are so placed in the power of the hunter that they cannot escape. But if, after they have already been captured, they recover their liberty, they again become the property of no one: which happens when they have escaped and can be apprehended again by the former owner only with great difficulty.

214. Corollaries. (A) From this it can be inferred what must be said of a wild animal wounded by one person and captured by another; for if it has been so wounded that it cannot escape the hunter, it is truly placed under his power, and cannot legitimately be captured by others; but if it can flee, or the hunter has ceased to pursue it, it is judged to have recovered its liberty, and can be retained by the first occupier.² Thus most civil laws,³ which in this matter must be obeyed.

² The same distinction applies to a wild animal caught in a snare: if it cannot escape, it belongs to him who set the snare; but if it is now soon going to escape, it becomes the property of the first occupier, although equity would suggest that it be divided between him who set the snare and the one capturing it, since each cooperated toward capturing the wild animal.

³ For France, see Villequez, Droit du chasseur sur le gibier, 2nd ed., 1884; more briefly Planiol, I, n. 1248-1252, in Supplement, p. 48*.

215. (B) With regard to those who hunt on another's land, these things must be established: (a) If the land is open, although the owner can prohibit anyone from invading his fields for the sake of hunting, wild animals captured there do not belong to the owner of the land, but to the hunter; nevertheless the owner can demand that damages inflicted on the land be compensated.¹ - But if another's land is enclosed and so fenced for the custody of animals that all are truly placed under the power of the owner, he who occupies them sins against justice and is bound to restitution. - If the place is indeed enclosed, but ample, justice is indeed injured, but strictly speaking only those animals must be restored which the owner himself could have captured; and at the same time damages must be repaired which happen from the fact that wild animals are not multiplied as the owner could legitimately expect.

¹ By French civil law, if a wounded wild animal flees onto another's land, the owner of this land can prohibit the hunter from capturing the wounded animal there. Thus Cassation, Apr. 29, 1862, in Planiol, n. 1252, in Supplement, p. 48*.

216. (C) Fish which live in the sea or in rivers which can be navigated are the property of the first occupier, at least by natural right. But in smaller rivers, or all the more in private ponds, the right of fishing is generally reserved to the neighboring owners of the banks; concerning this see the civil laws.²

² For France, consult Planiol, n. 1253-1261, in Supplement, p. 48-49*.

217. (A) Tamed animals remain under the dominion of the one possessing them as long as they have not escaped his custody, nor lost the habit of returning. But if for a notable time they have lost the habit of returning, e.g., if doves have taken refuge in another dovecote, they have now recovered their liberty, and become the property of the first occupier, i.e., in the case mentioned, of the one into whose dovecote they fled.

Hence a swarm of bees cannot be occupied by another as long as the owner has probable hope of recovering it; but if he has ceased to pursue it, it can legitimately be captured by another.³

³ In this matter civil laws must be attended to; for France: Civil Code, a. 564; Law of April 4, 1889, a. 9.

To use frauds and artifices for drawing to oneself and occupying trained animals is unjust, and often causes grave dissensions. - But what comes under the name of fraud must be determined by civil laws or custom.¹

¹ In the time of sowing and harvest doves must be enclosed, lest they inflict damage on fields; and if they are not enclosed, every owner has the right of killing them on his own land and making them his own (Law of Aug. 4, 1789, a. 2).

218. Tame animals remain under the dominion of him to whom they belong, even if they have wandered away; for since they have never had their liberty, they are truly the object of a permanent dominion; and if they have been lost, they must be restored to the owner, even dead; and this holds even if they have been rescued from destruction by the industry of the one occupying them.

By French civil law (Law of April 4, 1889, a. 5), farmyard animals (animaux de basse-cour) which have taken refuge with another owner can be acquired by accession, after one month computed from the day on which this other owner declared before the mayor (maire) that these animals had been received by him. For this to hold in the forum of conscience, it is necessary that the first owner remain unknown;² indeed natural equity at least suggests that these animals be returned to the owner, if he has certainly been known, even after several months have passed.

² If domestic animals inflict damage, the owner is bound to compensate it; if birds do this, they can be killed by the owner of the land as long as they are on the land itself (Civil Code, a. 1385; Law of Sept. 28 - Oct. 6, 1791, tit. II, a. 12).

219. Corollary: on the violation of civil laws concerning hunting and fishing. The faculty of hunting and fishing is restricted by civil law in various ways. (A) He who hunts without due license, of itself indeed sins against legal obedience, but only lightly, because there is no question of a grave matter; indeed often not even lightly, because many are persuaded that this law is merely penal. Therefore under this head there is no place for restitution, since no strict right of anyone is violated.

220. (B) But he who hunts or fishes at a prohibited time or place sometimes sins against justice, and indeed gravely or not, according as the damage inflicted was grave or light. For such a prohibition is often made on account of a motive of public or private utility, namely lest animals be notably diminished, with detriment to the republic, or lest the crops of private persons be destroyed, or their rights of hunting or fishing invaded; therefore violators of these laws inflict damage either on the community or on private persons, and under this head sin against justice; but the gravity of the sin depends on the gravity of the damage inflicted; hence the principles to be set forth below concerning the damager must be applied.

Hence hunters who frequently devote themselves to illicit hunting (braconniers, poachers) of themselves sin gravely, both on account of the damage inflicted on others, and on account of the danger which they incur of repelling by force and wounding the keepers of the forests.

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.

641. • Animals of four kinds are distinguished.

1° Wild or fierce animals, which by their nature abhor human society and enjoy natural liberty, such as hares moving in fields, fish in the sea, birds in the air.

2° Tame or domestic animals, which by their nature enjoy human society, but do not enjoy natural liberty, such as sheep, horses, etc.

3° Tamed animals, which by their nature indeed are wild, but by the industry of man have been so domesticated that they now have a custom of going away and returning home, such as doves, bees, etc.

4° Animals become wild again, which have resumed their former wild disposition after having been tamed, such as doves leaving the dovecote and living in the fields.

642. Principles of natural and of our law. - I. Wild or fierce animals, and also animals become wild again, become the property of the first occupant. - For things which belong to no one are licitly occupied by natural right, and therefore become the property of the first occupant, at least unless some positive law applies their dominion to someone else (see n. 638). But once reduced into the dominion of someone, they remain under his dominion as long as they are retained in custody and have not recovered or resumed natural liberty. But they are judged to have recovered liberty when they have so escaped custody that pursuit of them has become difficult; and then they so cease to be under dominion that they can become the property of another occupant, just as if they had never had an owner.

643. You will resolve. - A wild animal wounded or caught by a snare:

a) On another's land so enclosed that on the one hand wild animals cannot go out from it, and on the other individual animals can easily be taken, is not the property of the one wounding or snaring; because in this case the wild animals are judged to have lost their liberty and to pertain to the owner of the land,¹ and this by the same right by which wild animals enclosed in a zoological garden pertain to the owner of the garden.

b) On another's land, even enclosed, but so open that wild animals can go out from it, it is the property of the one wounding or snaring, if it has been so injured that the one injuring is morally certain that he will easily apprehend it, or so taken in a snare "that the animal cannot escape" (Kent).¹ The reason is that wild animals in this case belong to no one, since they can go out from the land, and are by no means to be held as fruits of the land; therefore they become the property of the first occupant. But in reality he must be said to have occupied them who has either so injured them that he is morally certain that he will easily apprehend them, for thus he has already morally apprehended them, or has so snared them that they are not going to escape. Therefore the owner of land of this kind cannot take prey killed or snared by another, except in compensation of damage which has been inflicted either on him through this injury of the right of hunting which perhaps he enjoys, or on the land. The rest have no right in the prey; yet often in good faith they think it licit to occupy wild animals which they find entangled, but not yet taken away by the owner. In practice, attention must be paid to this good faith of agents. Mar. p. 119. n. 229. - In doubt whether a wild animal wounded by one and apprehended by another could have escaped the one wounding it, the animal itself or its price is to be divided.

What we have resolved here concerning hunting, resolve the same, with due proportion observed, concerning fishing; for here also there is question of wild things which, unless they are so deprived of natural liberty that none can escape from the fish-pond or pool in which someone has shut them up and all can easily be caught, are things belonging to no one and therefore are the property of the first occupant or taker.

Note. - Oysters which someone has in that part of the water over which he has dominion cannot be taken by others without injustice; for they are held in a bed, from which they cannot go out and from which all are easily taken.

644. • Obligations arising from civil laws pertaining to hunting and fishing are of different kinds. Some only regulate the use of hunting and fishing, and regard, for example, the time at which hunting or fishing is permitted, and these, from the sentence of St. Alphonsus,³ are merely penal. Others urge from natural right with respect to the proprietor of the land; and these obligate from commutative justice if the land or bed is so enclosed that wild animals or fish cannot escape and all can easily be taken by the owner of the land. Others regard obligations which arise from the right of hunting or fishing exclusively conceded to someone; and these bind from commutative justice only insofar as it is not licit for you to bring grave damage upon him who possesses that right, as if from your fishing the hope of catching a greater number of fish, which otherwise he both wished and could have caught, were diminished for him. - You are also bound concerning other damages inflicted, for example to crops.

645. Principle II. - Animals wild by their nature, but tamed, remain the property of the prior owner as long as they have not escaped his custody or lost the custom of returning; for animals of this kind pertain to the possessor both by reason of occupation and also by reason of education and detention. - But if they have escaped the custody of the owner or lost the custom of returning, they become the property of another first occupant, because they have recovered their nature and have become wild again (see n. 642).

646. You will resolve. - 1° "If a swarm of bees had flown from the hive of A, they were" (at common law) "reputed his so long as the swarm remained in sight, and might easily be pursued; otherwise they became the property of the first occupant. Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder. Bees which swarm upon a tree do not become private property until actually hived."¹

2° Doves fleeing by their own motion, without having been attracted by fraud, become the property of him into whose dovecote they come. Otherwise, if they are enticed by fraud, for example by food altogether extraordinary or very choice, unless nevertheless custom permits this.²

But it will be licit, unless you can easily drive them away, to kill doves belonging to another that are gravely harming or about to harm your field, and to take them for the damage after the damage has been inflicted. For it is licit for each one to preserve his own thing, even if from this there follows indirectly to another a damage equal to the damage which the one about to be harmed wishes directly to avert from himself. But doves are not presumed to harm gravely except at the time of harvest or sowing.¹

For Louisiana as to bees and doves, see Civ. Code of Louis.²

647. Principle III. - Tame or domestic animals remain those of the prior owner, however much they wander away; hence they cannot be occupied by another, and natural fruits perhaps perceived from occupied animals, for example eggs, etc., are to be restored. The reason is that domestic animals can never be said to have recovered their liberty, since by their own nature they have no liberty. Therefore as to them there can never be place for occupation, except by finding.

204. I. Occupation of animals regards three diverse genera. They are distinguished:

a) wild or sylvan animals, which by their nature naturally shrink from human association and are accustomed to be constituted under no one's dominion, nor could they be brought into dominion by human industry, and therefore by natural force enjoy free wandering and have no owner, as lions, eagles, vultures, stags, hares, fish, etc.;

b) tamed or domesticated animals, which by nature flee from human association and live of themselves in liberty, but by human industry are deprived of liberty and have been reduced under the perfect dominion of man, such as doves returning to a dovecote, bees in a hive, rabbits in a warren, and wild animals or fish enclosed in places from which they cannot escape;

c) tame or domestic animals, which by their nature incline toward human association in domesticity, and have become so accustomed to the society of men that they are not accustomed to flee from the power of the owner, but to serve domestic uses, for example, sheep, cattle, horses, hens, dogs, etc.

205. Concerning the occupation of wild animals the principles to be attended to are:

1. Wild or sylvan animals which enjoy their native liberty become the property of the first occupier: for they are things of no one, and therefore they become the property of the first taker or occupier; but they are occupied when they are so constituted in the power of man that morally they cannot escape.

2. Those which have recovered their liberty are again no one's, because the sole bond by which they have connection with the owner is broken; but they are judged to have recovered liberty when they have escaped and the owner no longer follows them nor intends to recover them [misprint in original: incendit], or when there is not for him a probable hope of recovering them, because pursuit has become morally impossible.

3. Sylvan animals do not belong to the owner of the land, unless the land is so enclosed that morally they cannot escape, and at the same time is not so very extensive that they are taken with equal difficulty as in an unenclosed place: under these conditions they have already been morally taken by the owner.

Hence a) a wild animal so wounded or entangled in a snare that it cannot escape is already sufficiently occupied, and cannot justly be apprehended or retained by another;

b) a wild animal wounded or entangled which can escape, or which the hunter has ceased to pursue, enjoys its liberty and can be retained by the first taker;

c) nevertheless, a wounded wild animal which flees onto another's land, if by civil law the owner of the land can prohibit the hunter from taking the wild animal there,¹ can also probably be taken by the owner; if nevertheless it is taken there by the hunter, it is certainly his, unless somewhere civil law should invalidate the occupation;

¹ Thus, for example, French and Belgian law. - According to English law, sylvan animals belong to the owner of the land on which they were hunted and killed; if they were hunted on one field and killed on another, the first owner is preferred, if he claims the animals. By American law, sylvan animals belong to the owner of the field in which they are or are killed; hunted on one field and killed on another, they belong to the hunter, but he must satisfy both for usurpation of the field; but fugitive animals are held as abandoned, unless the owner at once pursues them. By Spanish law, from art. 37 of the law of May 18, 1902, on hunting, a hare killed in another's field belongs to the killer; from art. 38, however, it is divided if it is started up by one and killed by another.

d) he who hunts on perfectly enclosed land sins against commutative justice, because he steals animals rather than occupies them; and he is held to restitution at least according to the hope of capture and of profit ceasing, which the owner could have expected, or for the animals which the owner himself could otherwise have taken; and at the same time he must repair all damages brought upon the land from this. But he who hunts on open land is not held to restitution, unless sometimes by accident he has brought damages upon the land;

e) fish which live in the sea or in greater rivers belong to the first occupier because they enjoy liberty; but those which are in lesser rivers or in ponds (unless it is a very great lake) belong to the owners of the banks, by whom they can easily be taken.

206. Concerning the occupation of tamed animals the principles to be attended to are:

1. Tamed or domesticated animals of themselves remain in the dominion of him who legitimately possesses and guards them, and with whom they are accustomed to remain or to whom they are accustomed to return, because by that very fact they are subject to his power.

2. Nevertheless, if they obtain liberty, they are things of no one and become the property of the first occupier; but they have recovered liberty when they have escaped custody and have definitively lost the custom of returning: thus, for example, doves, fish, and rabbits not returning for a notable time; because by that very fact the bond by which they were bound to the owner is broken.

3. It is unjust to turn them away from the owner by unjust means, as by frauds and devices, and to attract them to oneself, in order to take them, or to detain them violently, for example by enclosure.

Hence a) he plainly commits injustice who takes fish from a fish-pond, oysters from a park, wild animals and birds from enclosed places;

b) doves which so betake themselves to another's dovecote that they have lost the intention of returning and are not claimed in time by the owner pass into the dominion of another; nevertheless, by fraud and device (for example, by nets or snares set out, or by feed much more choice than is usually given), another's doves would be unjustly enticed into one's own dovecote and detained there;

c) but if another's doves gravely harm fields, and damage cannot easily be averted by another means, of itself it is licit to kill them and to take just compensation therefrom, especially if the owner is unknown or can only with difficulty be warned; unless notably greater damage would be brought upon the owner. Moreover, at the time of sowing and of harvest they are presumed by civil law to harm gravely (law of Aug. 4, 1789);

d) bees whose swarm has escaped remain, by natural and civil law, under the power of the owner as long as he does not cease to follow or claim them; if he has ceased, they belong to the first occupier, or, if this is lacking, to him who has the ownership or use of that place on which the swarm has settled. Thus the Belgian law in the Rural Code, Oct. 7, 1886, a. 14. If the owner does not pursue, by German law they are judged things of no one and become the property of the first occupier; on the contrary, by French law they belong to the owner of the land; by Swiss law they remain with the owner, unless they have joined themselves to another's hive; by Italian and Spanish law, unless within two days the owner has pursued them, they become the property of the possessor of the land taking and retaining them, and for domesticated animals, after 20 days.

207. Concerning the occupation of domestic animals the principles to be attended to are:

Domestic animals, even if they have withdrawn from custody and have wandered far away, remain under the dominion of him to whom they belong: for by natural disposition they do not have native liberty, and therefore they are the object of permanent dominion; and they remain constituted within the moral power of the owner, nor is the moral bond by which they are bound with the owner broken as long as it is not impossible to recover them.

Hence a) if they have been lost, of themselves they must be restored to the owner, for example, a sheep wandering far away, even if they have been rescued from death by the industry of the occupier, for example, from shipwreck or fire;

b) if dead or partly destroyed, they must be returned to the owner, for example, a hen seized by a dog, a sheep by a wolf;

c) if they cause damage, their owner is held to compensate it (C.C., a. 1385); indeed they can be killed by the owner of the land, as long as they are on the land itself, if damage cannot otherwise be prevented and that damage is notable.²

² Thus in Belgium, also for rabbits and wild boars, from a. 6 and 7 of the law on hunting.

208. Concerning violation of civil law about hunting or fishing, it must be noted: of itself he probably does not sin who hunts or fishes in open places against the prohibition of civil law alone, for example, if he has not purchased the faculty of hunting, or hunts at a prohibited time or with a prohibited instrument: not indeed against commutative justice, because he occupies a thing of no one; nor against obedience or legal justice, because by custom such laws are considered as merely penal, as those which regard only external rule and order, nor is there sufficient certainty concerning the contrary intention of the legislator, at least in many regions.³ Yet by accident such hunting can be illicit and sometimes unjust:

³ Unless, as it seems, for Germany, because art. 958 of the German code denies acquisition of dominion to an illegitimate hunter.

1. illicit, by reason of the state of the person hunting, as of a religious, or of a cleric (for whom noisy hunting is prohibited); by reason of the danger to which the hunter exposes himself, for example, of exposing health, neglecting family affairs, incurring grave penalties with detriment to the family (and then it is against charity toward himself and his own); by reason of intention, for example, because he is prepared to resist violently those who by office are held to apply the law, and to wound or kill forest guards (and then the intention is unjust);

2. unjust, by reason of the damage which is brought upon the owner of the land, for example, by destroying crops, or of the damage which is brought upon him who has purchased the right of hunting, for example, by hunting too frequently or out of season: for then the right becomes notably cheaper. In which case the hunter must restore, not indeed the whole value of the animals taken, because he who buys the right of hunting is not the owner of the animals, but only acquires the right of hunting with impunity, but according to the hope of capture which he would have had to whom the right of hunting belongs.

I SPEAK as to Wild Beasts, Fish, and Birds, which by the law of nations can be free, and then no restitution is to be made, if they are captured, because thus they become the first occupant's.

WHEN, however, they are fed by someone in enclosed places, so that he may take them at will, or they go and return home. These, however, if they inflict damage on others, compel to restitution. And this seems true also of Doves; yet Sylvester does not compel them, verb. restit. 2. quaest 4. nor Valencia quaest. 6. punct. 5. bringing forward a witty reason, because by fertilizing the fields with their droppings, they give back as much as they damage.

FURTHERMORE, that Dovecotes are licit is commonly asserted with Navarrus num 126. See Tannerus disp. 4. quaest. 6. num. 352. Casas disp. 6. sect. 1. But if they fly often to another's Dovecote, and rest and dwell there, dominion is transferred. Instit. de rerum divisione.

THE SAME is said of Wild Beasts fleeing away, so that you can no longer pursue them, and of Bees ex Instit. cit. §. ff. lib. 3. 4. et 5. See Tannerus num. 354.

SECOND, if Beasts, fish, or birds are captured in a place reserved by the Prince, they seem to be things to be restored. Valencia, however, presupposes quaest. 6. punct. 5. Medina quaest. 12. de rebus restit. Sotus lib. 4. de Iust. quaest. 6. art. 4. Nauar. cap. 17. num. 120. and 114. that the Prince can reserve to himself certain places for hunting for his recreation from the labors and occupations which he sustains for the public good: He proves this at length, Covarruvias relect. in Reg. peccatum, p. 2. § 8. and there follow Casas disp. 6. sect. 2. Diana p. 2. Tract. 6. resol. 18. Valerus v. peccatum, differ. 16. who also extends the same to certain magnates, with Villalob. Tom. 1. Tract. 10. diffic. 16. num. 7. Wherefore Diana says that a certain Magnate defended himself in this way. So also Tannerus num. 350.

YET with this condition, that they inflict no damage on the peoples unwilling. But if they consent truly, and spontaneously, the Prince will not be held to restitution. So Cajetan opusc. 17. qq. cap. 11. Covarruvias num. 11. Navarrus num. 110. and Valencia. Ven. Bonaventure also asserts the same. Note that hunting is forbidden to clerics, clamosa cap. 1. de cler. ven. yet if it be exercised with a few dogs, Diana concedes it p. 2. Tract. 6. resol. 19. Indeed, hunting is rarely permitted, even though it be clamorous; with Valero v. Peccatum, diff. 20. and Rebellion lib. 1. quaest. 14. num. 10. and others.