46 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



can be made. He has addressed himself to it in an exhaustive manner. 

 He saw \yith perfect acnteness what the point was; and you have the 

 satisfaction of knowing that you have heard every word that can be 

 usefnlly said on tliat side of the case. So tliat in dealiiiji- with that 

 argument we are dealing with the wliole. They admit the in-inciple. 

 They admit every illustration which has been established by judicial 

 decision ; but they say it does not apply to the seals. To all these other 

 animals, but not Xo the seals. Is there any law to the contrary? Oh, 

 no. The question never came up as to fur-seals before. The attempted, 

 application of that rule to the fur-seal is new. There is no decision on 

 that subject. Then you have to resort to the principle on which those 

 decisions depend; and my friend has undertaken — and he succeeded so 

 far as anybody can succeed, 1 am sure — to ])oint out what is the dis- 

 tinction which would include the other animals to which this rule has 

 been ajiplied, and exclude the seals. 



This whole case turns upon that distinction — u])ou that precise point, 

 whether there are differences in the condition of the fur-seal under the 

 circumstances of this case, and the condition of those other animals in 

 respect to which the right of property is not denied. Let us see in the 

 first place exactly what are the facts on which we claim that the seals 

 are within that general rule; and then let us see on what ])oints of dif- 

 ference, if any, it is claimed or may be claimed that tliey are not within 

 the rule. Let us deal with the subject fairly on both sides. Fairly 

 my learned friend has dealt with it, certainly, and lairly I shall try to 

 deal with it. 



These animals, as I have said, are begotten, born and reared on this 

 land, and have been, since the first knowledge of mankind in respect to 

 them. It is not merely a ])lace to whi(;h they can go, as in the case of 

 other animals that have the animus revcrtendi. It is probably — not 

 certainly, but probably — the only place. Some land of this description 

 is absolutely indispensable. Tliey are am])hibious. They cannot prop- 

 agate or breed or rear their young but u[)on the land. The young could 

 not be born elsewhere. They could not live if they were born elsewhere 

 than upon the land. For seven months in the year they remain there, — 

 I do not mean every individual of the herd, but from the time the herd 

 begin to arrive until they get through going away is about seven months; 

 sometimes longer, according to the testimony. They would not go away 

 at all if the winter was mild enough, 'i'hat seems to be generally agreed. 

 It is the inclemency of the climate — the inclemency of any climate that 

 in the summer affords qualities necessary to their existence and their 

 proi)agation, that obliges them to move for the winter. There they are 

 submitted so completely to the control of man that there is nothing that 

 can be done to an animal that we could not do to every one of those, if 

 it was of any use. We can shut them up; inclose them; brand them; 

 mark them — we can do anytliing with them. They are completely 

 within our control. There they derive the protection without which 

 they would cease to exist, through the forbearance, tlie judicious, intel- 

 ligent forbearance taught by experience. The Eussians did not have 

 it in the first place. They used to kill the seals indiscriminately; but 

 as early as 1847 — perhaps earlier than that, but certainly as early as 

 1847 — they found out that indiscriminate killing meant extermination; 

 that they must save the females ; and then they introduced the practice 

 of selected killing by which only the males of a certain age are taken, 

 and only a certain restricted number; and that has continued down to 

 the present time. 



