ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 45 



prior discovery, and transferred it to the United States. We stand 

 upon their title. The seals are appurtenant to it, and that Govern- 

 ment had taken possession and founded this industry and set all this 

 machinery in motion, — had sent their cruizers there to protect it, and 

 their agents to carry it on, and to save and jn^eserve animals that would 

 have disappeared long- before any of us were troubled with legal ques- 

 tions, if it luid not been for that interposition. 



There is another suggestion before I come to the precise consideration 

 of this question of i)roi)erty. Over all wild animals — 1 mean all useful 

 wild animals — every Government has the prinuiry right of control. 

 Not the property; it does not own that. It does in this case, but not 

 always. The Government does not own the partridge on my land; if 

 it is killed i^does not belong to the Government, but the right of com- 

 plete control does, so that the Government has a right to say to me, and 

 does say everywhere to its subjects. Yon shall not slay the i^artridge 

 on your own land that is necessary for your iood, except at a certain 

 period of the year, in a certain way, under certain restrictions, perhaps 

 by taking out a certain license. It may go further and say. You shall 

 not" kill it for a series of years if it is deemed necessary for the general 

 preservation of these animals, Avliich with their capacity to go from one 

 proprietor to another never can be made the absolute pro])erty that 

 domestic animals are. The theory of protecting, for the benefit of 

 mankind these animals, is carried so far that every Government assumes 

 without dispute, the primary and prior right of control, even over the 

 owner on whose land the bird or animal is, while it is there. And that 

 is a proposition that is no longer open to any dispute. 



Now, the claim of property, I say again, which is assailed by the 

 pelagic sealer, is a claim by the Government of the United States; and 

 it will be seen, I think, before I am through that that may make an 

 important difference — that a Government has certain rights against 

 conduct on the high seas which an individual would not have — that a 

 Government may be entitled to protection in the ownership of such an 

 industry as this, when if it were mine, I might not be. 



Keturning then to the question of property, let us iirst regard it in 

 the light of the rules of the municipal law that prevails between indi- 

 viduals where no governmental riglit is involved. Where a wild ani- 

 mal, valuable to man, is so far restrained — brought under the custody 

 and the control of the proprietor of the land — that it has what has been 

 called the animus revertcndi, which brings it constantly back wherever 

 it goes, to the place where it receives protection and care, it becomes 

 the property of the proprietor until the animus revertcndi is lost. That 

 proposition is not disputed as a general proposition. The numerous 

 illustrations of it found in the law books are not disputed; they cannot 

 be. All those have been gone over, — the right in the bees, in the swans, 

 in the pigeons, in the deer, and so on — all those cases which have arisen 

 have had the general principle particularly ai)plied to them. There are 

 valuable animals found on a proprietor's land, to which those principles 

 have been held not applicable, and to which I shall allude; but the 

 general jirinciple and the application of it to all those animals that have 

 been the subject of i)recise legal decision is not disputed. I need not 

 go over that ground again. It need not have been gone over at all; it 

 is very familiar of course to every raeinber of the Court. 



Then what is the dis[)ute? Where are we at issue? You have had 

 on that side from my learned friend Sir Eichard Webster, what Courts 

 always have from him on every question, the very best argument that 



