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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Fork [1817] NSWKR 1; [1817] NSWSupC 1

R. v. Brennan

R. v. Riley

cattle property of the Government - ferae naturae

Court of Criminal Jurisdiction
Wylde J.A., 1 or 2 May 1817
Source: Sydney Gazette, 10 May 1817[1]

           The Court of Criminal Jurisdiction, which has been sitting for the last three weeks from day to day, is not even yet dissolved; it was to have been so, we heard, on Friday last, had not some unexpected matter arose which is immediately to be brought before it.

           Although His Honor the JUDGE ADVOCATE has taken occasion in most instances to pronounce the sentence of the Court immediately after trial, yet on that day several of the prisoners convicted during the session, on whom sentence had not been passed, were brought up for judgement; and one of the cases is of so much importance, that on public and private considerations we feel happy in being able to give even the outline of that elaborate and perspicuous judgement, which occupying two hours and more, His Honor the Judge Advocates delivered on the occasion.

His Honor began by observing, that the crime of which the prisoners Fork, Brennan, and Riley had been convicted, had been so frequently of late committed in defiance of all prohibition, disregard of the fatal consequences, and such audacity of purpose, that one was led to doubt whether the commission was illegal or mischievous in its consequences to the interests of the community. Indeed it was impossible not to be aware, the doubts had in fact to generally arisen, when the statute applicable to the subject could be strictly enforced, or whether any guilt could legally be attached to the offence charged against the prisoners. After other general observations, His Honor proceeded to enter upon the circumstances of the offence, which consisted in the prisoners having killed a bull belonging to the Government herds, collected in the Cow-pastures. The fact had been most satisfactorily proved, which clearly in the opinion of the Court brought the case within the statute, affixing a capital punishment on its violation; namely, the 14th Geo. 2, c. 6, and explained by the 15th Geo. 2, c. 34, making it a felony without benefit of clergy, "for any person feloniously to driveaway, or in any other manner feloniously to steal one or more sheep or other cattle (including all horned cattle), or wilfully to kill the same with a felonious intent to steal the carcass or any part thereof." Upon the nature, tendency, and construction of the statute His Honor made some general remarks, citing as throughout the judgement several legal authorities referrable to the subject. It appeared from the evidence stated, to have been proved on the trial that the three prisoners, in company with two others, had been seen in a boat, private property, and stationed at a point in the Cow-pasture River, by two of the Government Constables stationed there on the public service, and who had the care of the boat, which the prisoners had without leave taken away that the Constable immediately desired that the boat should be brought back: three of the men were however landed on his side the river, each carrying away a bag, and a musket also, that the two other men then returned with the boat, when an enquiry was made by the Constable, who the persons were that had been just landed, and what the bags taken with them contained? No satisfactory answer was given; and upon the constables' declaring that they would make a report of the circumstances, the two men, who were known, and since admitted as approvers on the part of the Crown, endeavoured to prevail with the constable is to make no disclosure of what had happened. One of these men proved, that himself and the prisoners had, when seen in the boat, just returned from the Cow pastures, where they had been engaged two or three days, endeavouring to kill the cattle there; that at last they had succeeded in hunting down one with their dogs, which they killed, and brought away as much of the carcase as each man could carry. Some other corroborative evidence was then given, upon which the Court had found the prisoners guilty. Two points of law, however, had been taken in arrest of judgement, first, that there was no sufficient proof of ownership in the Crown, as averred in the charge; and secondly, that the animal killed being ferae naturae, was not within the terms of the statute. His Honor then remarked, that the argument in support of these objections had with so much confidence claimed the acquittal of the prisoners, that he now felt it his duty more minutely to enter into the investigation of the grounds, on which it was supported, and of determining the principles of a question, upon which not only the interest of the Crown, but all the valuable property of private stock in the Colony entirely depended; for if such a crime could be committed with impunity, there was as little security in respect of all stock for the private settler as for the Government itself.

           His Honor suggested, as to the first objection taken in arrest of judgement, that there was no sufficient proof of ownership in the Crown, that although that point was not of right open to the prisoners after verdict, which had found of course that fact, yet that he was not disposed, upon this consideration, this day an argument, not indeed even arising, perhaps, upon the evidence in fact given, but rather upon the general idea that no property whatever could be legally claimed by the Government in the Cow pasture stock. This notion was of such mischievous tendency, especially when supported by the professional opinion and bold conclusions of the argument delivered, that it was of importance perhaps to look a little into the authorities, as to what degree of ownership was sufficient to support an indictment for larceny. His Honor then proceeded to show by very numerous quotations from the books and reports, that a special property in the goods is sufficient for this purpose; and therefore that a carrier, or a party to whom goods are pawned, may be described as owners, or the goods may be laid as the property of the person, who is beneficially interested in them: so goods stolen from a laundress may safely be described as hers: goods purloined from and inn may be laid as belonging to the inn-keeper, or the guest who put them under his protection: so where a man who has cattle to agist, which are taken from his custody, the property may be laid in him; and where a parcel is stolen from a stage coach, the property may be well laid in the driver, though he be no proprietor either of the goods or of the coach; with other cases to the same effect. That as to the cattle in question, not only had the Crown a qual fied property in respect of the depasturage, the land, and as to the animal being an estray (which had been suggested on behalf of the prisoners as the strongest ground, both in law and justice, for requiring direct proof of ownership:) inasmuch as such valuable animals as found wandering on any Crown lands, and no man knoweth the owner of them, the law gives to the King, is the general owner and lord paramount of the soil, in recompence for the damage they have done therein. But in respect of occupation, absolute possession, ratione soli, and as bona vacantia, an indefeasible right and property were clearly vested in the Crown; for possession of the land carries with it to the owner all of valuable property to be found on it; and that even if it could not be proved, that the Crown had actually planted the stock there in the first instance, still that the reservation of the land to its own particular use vested in the Crown all profit of whatever kind, that might belong to, and give advantage to the possession of it; That this right and possession had been notified from time to time by public proclamations in the Gazette (which had been held up to be sufficient evidence of all acts of the State contained in it), by the several Governors of the Colony, by penal prohibitions, by public punishments; that soldiers and constables were stationed on the spot, while at the same time it was to be recollected, that the great object of the statute is stated to be to prevent the charges of having cattle under watch.

           His Honor then took notice of the second objection, that the animal in question was ferae naturae or not of a tame nature, and therefore that no crime had been committed: and observed, that although it was true that no private property could be obtained in such animals, unless dead, reclaimed, or confined, yet that there was no ground in the present case for the assumption, that the depasturage- lands of the Cow-pastures, within which the cattle in question are collected, and within which it appeared on the evidence the animal killed was certainly found, were not a sufficient confinement to give property in them to the owner; that the mere extent of the space in possession could not be the criterion of the right of property, and that inclosures therefore could not, as suggested, be at all essential to its validity or advantages; that the large and small landholder must have equal rights and profits dependent upon occupation and possession; that the close or waste, forest or field, chace or preserve, could not affect the right of property appertaining to the owner, while at least on the land, and that no right could belong to any stranger, under any colonial privilege of character, to molest or destroy them. But whatever uncertainty might belong to the right of ownership, even as to animals ferae naturae when alive, at any precise period of disputed possession, none whatever could arrive, when the animal was dead; for then he became absolute property, and had lost the power of breaking that confinement, an escape from which, without an animum revertendi, could alone divest the property out of the qualified possessor; "so that to steal them, or otherwise invade his property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury:" But it was laid down by all the authorities, that larceny may be committed even of animals ferae naturae, when dead; and inasmuch as the second count in the indictment was for stealing the carcase of the bull, it was a sufficient averment, that the animal, even if ferae naturae, was in that state, which made it a subject of positive private property, and the feeling of a matter of larceny.

           His Honor proceeded now, however, to shew with very strong reasoning and very satisfactory observation, that the cattle in question could not at all be truly denominated animals ferae naturae, but were in every respect to be classed as of a tame and domestic nature. It had been proved on the trial, and was well known as the fact, that the Government herds contained various particular marked original breeds, and that, although it might be true that naturalists might have in theory and history given credit to the existence of a genus of wild horned cattle, yet that never had any particular and distinguishing breed been as yet assigned to such, as was proved to exist in the Government herds, such as the Surat and Cape class; that upon the doctrine of "Partus sequitur ventrem," the wild animal could have no such distinction, and that the suggestion of a significant breed immediately subverted all notion and character of the ferae naturae; that the origin of all animals were most probably in kind ferae naturae; that necessity, use, and subjection affected the degree, till a distinguishing character originated, and then the produce of two classes was one remove from the state of a positive wild nature, and so on, till the original wildness of the origin was wholly absorbed and lost; as we see the domestic dog still referable back to the wild shepherd dog of the woods, although no traces of the character remained. But whatever distinctions might belong to the natural history of such animals, the law had recognized only two real distinctions between wild and tame animals, and which perhaps was only necessary for the Court to have in consideration; especially when the only consequence of a greater latitude of construction was to give effect to the mischievous intention of destroying private property, and rendering insecure one of the most certain sources otherwise of profit and wealth in the Colony. The distinction then the Law apprehends to be most obvious in this respect, is found to be between such animals as we generally see tame, and are therefore seldom if ever found wandering at large, which it calls dominae naturae, or tame; and such creatures as are usually found at liberty, and which are therefore supposed the more emphatically ferae naturae, "or wild;" such as are fit for food, and those only kept for pleasure, curiosity, or whim; such as are of a valuable, and those only of a bare nature. If this be the true distinction, and which judgement and experience support, what ground was therefore the idea that the animals in question should be considered wild? If regard be had to the presumed origin from some stray cattle brought by the Government from the Cape of Good Hope (necessarily to be considered tame) at the first establishment of the Colony, and which accidentally escaped into the interior, there was not the least pretext for the suggestion, upon the principle that the produce follows the dam, for no ferocity in the animal itself can change its origin or nature, any more than madness in the animal or its mischiefs. An equal degree of wildness perhaps exists in the horse stock of the country, from the extensive range afforded them; yet to term them or treat them as animals ferae naturae would expose to ridicule or penal consequences. The only instance, that had been cited of any wild horned stock existing, was the herds on the plains of Buenos Ayres; and even those, at the moment of the argument being suggested, was stated by an amicus curiae present to be vested property in certain privileged persons, who exercised an advantageous right over them, as private property. The same pretence might in truth as justly be made for killing the stock of any private stockholder in the Colony which was scarce less wild, and possessed no one trail of useful property and application, which did not belong to the Government cattle. To destroy these therefore with impunity was to give licence to general depredation, and to defeat the object of that wholesome statute, which passed to obviate the mischiefs which the Law considered of so serious a nature as to make life itself the forfeiture for the offence. "If then," His Honor was pleased further to observe, "the animal killed by the prisoners were clearly of a tame nature, another ground, founded upon the general law of indictments, would relieve from all necessity of proving ownership, which in the present case however it has been shewn was sufficiently and satisfactorily proved, and which therefore it was only necessary to notice for future purpose and caution: - for such an averment forming no part of the gravamen of the charge, and being matter of defence and justification, may be considered as surplusage, and need not be proved. It is sufficient to prove so much of the indictment as shews the parties charged to have been guilty of some specific crime, though not to the full extent charged against them; and it is not necessary to negative any excuse or justification, the affirmative of which would be an answer to the charge; such averment would be unnecessary, since the prosecutor would be under no obligation to prove them: therefore the allegation and proof of such circumstances as would avail by way of justification, come most properly from the prisoner. Upon this clear and generally acknowledged principle of criminal law, it was incumbent on the prisoners to have shewn, if of any effect as to justification or defence, and not upon the party prosecuting, that the property was not as averred either as to ownership or kind. In the case of stealing fish, of course animals ferae naturae, the fish may be alleged to be the prosecutor's property, though the allegation is not necessary. So in the case of burglary, where it is laid to have been committed in the dwelling house of a particular individual, but no evidence is given of the proprietors name, the defect has been held to be immaterial, since the crime subjects the offender to death, wherever it is committed: - Thus, in another instance, of an indictment for robbery from the person, if it be averred to have been committed on the highway, it is unnecessary to prove the allegation, for it forms no part of the legal description of the offence, and might have been wholly omitted without any injury to the charge. To adopt any other doctrine or principle of evidence in respect of the statute, on which the present charge is founded, would be an anomaly of construction, a perversion of the criminal justice and almost an annihilation of all the advantages resulting from so beneficial a statute, - in a place too, in which of all other parts of the world a direct and legal evidence of ownership would be generally difficult, and in many cases impossible to be obtained, and where the stock is so particularly exposed to rapine and destruction."

           The Court therefore are desirous, but it should be clearly understood, that in no case hereafter of cattle killed or stolen will evidence of ownership be required. The crime contemplated by the act is perfected in the destruction of the animal, or larceny of the carcase or part thereof, and it forms no essential part of the guilt or crime, in whom the property destroyed may in fact proved to be violated.

           After all it is to be remarked, that the only consequence of failing to prove the ownership, as averred, even in any case where such proof may be necessary, would be that the prisoner would be entitled to an acquittal upon the specific indictment, and almost immediately be put to his trial on another alleging the property in the proper owner. Little advantage therefore belongs to an objection, which, when even successfully taken, only delays the verdict and its consequences till the formal mistakes may be corrected: - "for though in favor of life, great strictness has at all times been required in points of indictments, and the truth is that it is grown to be a blemish and inconvenience in the Law and administration thereof, it were fit that by some Law this overgrown curiosity and nicety were reformed which are now become the disease of the Law, and will grow mortal without some timely remedy.

           What then remains," proceeded His Honor, "but that upon the perpetrators of a crime so clearly within the statute, so injurious to the public interests of the Colony, so willingly and wickedly committed against the force of example, prohibition, and the warnings of mercy, the awful sentence of the Law should be pronounced; the anxious and benign care of His Excellency that Governor, in extending so recently gracious pardon and indemnity to all such offenders has been despised: His authority, exercised only for the public welfare and interest, disputed, contemned, and violated; the public Government is set at naught ; and, in this, every private right and all security of possession invaded. No end seems to await the mischief, but by exterminating its vicious and deluded authors! what circumstance or consideration then can justify the Court in longer delaying to call for that solemn silence, which strikes upon every the hardest heart as the harbinger of the fatal, deathful sentence? the prisoners can justly prefer no claim for mercy to the Court, while public duty and expediency have closed the doors for ever of that prerogative, which were ever wont to be open. The rigorous sentence of the Law, when pronounced by the Court, must in cases of this nature remain irreversible, and the victim alone can satisfy the violated justice of the Country. To share the sacrifice, if the sanctions of conscience and the duty would permit, has been the anxious feeling and consideration of the Court. Happily, in the terms and in the spirit of the Proclamation, which stands the rainbow of public mercy and indemnity, as well as from the special privileges of its jurisdiction, they obtain that saving power. In the Proclamation in question, bearing date the 1st of January last, it is declared, that it shall take effect from that date, (or as soon as the same may be duly promulgated and made known: - the animal in question is proved to have been killed on the 27th of that month, while some of the witnesses adduced state, and therefore give reasons to the Court to believe, that it was possible, but some in the interior of the Colony might not have heard of the publication of its subject, though it is clear that every means has been adopted, which the nature of the Country, and the most public communication would allow. On this ground alone the prisoners find a resting place.- Although the Court are desirous of declaring, that such ignorance, they are well aware can afford no excuse in law, will be urged in any future instance, with the slightest pretence of justice or expectation of success; yet inasmuch as upon the evidence it might be possible, though by no means probable, that the Proclamation might not have reached the prisoners, and that having heard or seen it, they might have abstained from the commission of an offence (on which professional ingenuity has been old enough to argue and the firm that doubts might be reasonably entertained), the Court have been pleased to consider so much of positive criminal intention to be withdrawn from the offence, as to spare the devoted lives of the offenders, and only to render necessary their removal for ever from that portion of society, whose rights they have shewn such a disposition feloniously to disregard and violate. The Court does therefore adjudge, that the prisoners for the offence of which they stand convicted, shall respectively be transported to such place within this Territory or its Dependencies, as His Excellency the Governor may please to direct, for the Terms of their respective natural Lives."


[1] There was no such notion as animal rights in colonial New South Wales or in nineteenth century English law. When animals were the subject of a criminal or civil trial, the issue at hand usually related to their property status: see for example R. v. Loveday and Smith, 1805, and R. v. Donlan and Condron, 1809, and see the discussion of the potential economic impact on the owner of the pig (and its unborn babies) in R v. Reece, 1799.

This case also highlights the Crown's significant expansion and claims to entitlement over unsettled regions of the colony. Lisa Ford comments that the case is "one of the first - and most complete - articulations of Crown sovereignty, property and jurisdiction over the unsettled regions of New South Wales ".
See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ777, p. 237; and see

L. Ford, Settler Sovereignty: Jurisdiction and Indigenous People in Georgia and New South Wales 1788-1836 , Ph.D. dissertation, Columbia University 2007, (forthcoming revised manuscript: Harvard University Press, 2010), 364.

Published by the Division of Law, Macquarie University