words, with the civil law, ſpeaks Bracton[1]: occupation, that is, hiving or including them, gives the property in bees; for, though a ſwarm lights upon my tree, I have no more property in them till I have hived them, than I have in the birds which make their neſts thereon; and therefore if another hives them, he ſhall be their proprietor: but a ſwarm, which flie from and out of my hive, are mine ſo long as I can keep them in fight, and have power to purſue them and in theſe circumſtances no one elſe is intitled to take them. But it hath been alſo ſaid[2], that with us the only ownerſhip in bees is ratione ſoli; and the charter of the foreſt[3], which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in conſideration of the property of the ſoil whereon they are found.
In all theſe creatures, reclaimed from the wildneſs of their nature, the property is not abſolute, but defeaſible: a property, that may be deſtroyed if they reſume their antient wildneſs, and are found at large. For if the pheaſants eſcape from the mew, or the fiſhes from the trunk, and are ſeen wandering at large in their proper element, they become ferae naturae again; and are free and open to the firſt occupant that has ability to ſeiſe them. But while they thus continue my qualified or defeaſible property, they are as much under the protection of the law, as if they were abſolutely and indefeaſibly mine: and an action will lie againſt any man that detains them from me, or unlawfully deſtroys them. It is alſo as much felony by common law to ſteal ſuch of them as are fit for food, as it is to ſteal tame animals[4]: but not ſo, if they are only kept for pleaſure, curioſity, or whim, as dogs, bears, cats, apes, parrots, and finging birds[5]; becauſe their value is not intrinſic, but depending only on the caprice of the owner[6]: though it is ſuch an invaſion of property as may
