ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 47 



Tliose are the eirciiinstaiices upon wliieli we say that this animal is 

 brought more fully witliiu the reasons wliich are assigned by courts of 

 justice for the establishment of this general rule and the application of 

 it to other animals, than any other animal that h;is been the subject of 

 judicial consideration. Here is an animal of a high degree of intelli- 

 gence, an animal to whom this land, or some land which is like it, is 

 absolutely essential. The (oiinius revertcndi is not only perfect, but it 

 is constant and it is undisturbed. 



Senator Mokcjan. — Mr. Phelps, in speaking of some other land just 

 like this to which the seal may resort for their summer habitat, is tliere 

 any evidence in this case to show that any trace has been found else- 

 where in Behring Sea than on these islands that they have ever had 

 such a home? 



Mr. Phelps. — I was about to remark upon that, sir. It is a sugges- 

 tion that comes very naturally to mind in considering this. In all the 

 exhaustive evidence in this case, in all the discoveries of the British 

 Commissioners — and it is pretty safe to assume that anything that can 

 be discovered on their side they have found, there is not the shadow of 

 a suggestion that a fur-seal in the Behring Sea ever hauled out, as the 

 phrase is, ever went ashore on any spot except the Pribilof Islands and 

 the Commander Islands. I do not speak of the Japan Islands, of course. 

 "We are speaking of these waters. Whether if the United States were 

 to plant batteries on the Pribilofs, open tire upon the herd of seals when 

 they came there in the spring, drive them off, and absolutely prevent 

 their landing there — whether they would gather themselves together 

 and seek fresh lields and pastures new somewhere else, is a question 

 that nobody can answer. It is purely and only a matter of conjecture. 



To begin with, there would be no young that year. The young would 

 all perish. There would be no young tlie next year because no ])ro])a- 

 gation could take ])lace. Then what would become of these re])elled 

 animals not killed but driven away? No man knows. It is known 

 that they must have some laud like this, possessing its qualities, its 

 moisture, its cloud, its particular Ibrnuition. It is not for me to say 

 that there is not in the world any other such land, except the Com- 

 mander and the Kurile Islands. They have brought, (which I shall 

 allude to in another connection,) the evidence of some conjecture by 

 l)ersons more or less qualitied to express conjecture — some of them 

 pretty well qualitied, others less so — to show that if we did not care 

 for these animals, if we allowed them to be disturbed, if we interfered 

 with them too much, if they were rei)clled, they would go to the Com- 

 mainler Islands, or they would go somewhere else. Perhaps they 

 "would; for they must go somewhere or i)erish. 



Now, what is the distinction on which it is said by my learned friends 

 that the seals are ditferent irom all these other animals held to be the 

 subject of ])roperty ? The law never has been applied to this particular 

 animal, under these particular circumstances. It is a new question, as 

 far as the ai)plication is concerned. The principle is as old as Bracton, 

 and Blackstone, and the Boman law. The application of it to this 

 particular animal is new, simply because a case has not occurred before. 

 What is the distinction between them? If the seals Hew through the 

 air instead of swimming; if -these islands were only a i)eninsnla and 

 they ran as the deer do, would that make a difference? If the bees on 

 the other hand, swam when they went abroad after honey, or the deer 

 Hew, would the law be changed ? If the wild swans travelled on foot 

 and the wild geese, would the law cease to be what it is now? Would 



