THE LAW OF CAPTURE, NEWFOUNDLAND-STYLE

Abstract

The rules governing the ownership of wild animals are of ancient origin. In essence, title is based on first occupancy. However, the rights acquired by occupancy are qualified: where the animal escapes, title is lost. As a corollary, the killing of the animal renders title absolute. These principles have been applied in a variety of contexts. However, the law governing capture within the Newfoundland seal fishery seems to have veered off on a different course. This article explores the Newfoundland jurisprudence on the ‘law of capture’ as manifested in a cluster of decisions rendered by the Supreme Court of Newfoundland in the latter part of the nineteenth century. The principles articulated in these cases are inconsistent inter se. The guiding doctrines were seemingly in transition and contested. This article seeks to discern why these disputes emerged – and the governing principles called into question – long after the commencement of the seal hunt itself. Moreover, the differing judicial approaches reflect the penchant of the Newfoundland judiciary to adopt unique legal doctrines in response to the special needs of the colony. The malleability of the legal concept of ‘possession’ aided that judicial activism. These themes will be explored.