48 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



courts of justice say, "We protected the bees while tliey flew, now 

 that they swim they have ceased to be protected. We protected the 

 deer while it ran, now that it flies — that is the end of it." Why you 

 cannot consider that serionsly. It does not depend on those differences. 

 Some of these animals fly; some of them rnn; some of them swim, 

 some of them stay; and they are all under the protection of the prin- 

 ciple of law. 



" Well, but " says my learned friend, " there is not any case in which 

 the animal has not been confined. You have bees; you put them in a 

 hive. You have pigeons; you put them in a dovecote. You have 

 swans; you put them in an enclosed pond. You have deer; you put 

 them in a i)ark." Why? Because that is what the necessities of their 

 life require. That is what is appropriate to them. Is there any diffi- 

 culty in our enclosing these aninnds after they get there in June? Is 

 there any difficulty in the United States running a fence around the 

 whole, and shutting them in? Not the slightest. But you see what 

 would become of the animals. We should have to leave the gate open 

 for them to go out into the sea, or else that would be only another mode 

 of destroying them. Is there any difficulty about putting everyone 

 into an enclosure? It is a mere question of expense. We could build 

 one big enough to hold them all; or, as I said, we can brand them. 

 Now it is very evident that this distinction will not do. You must 

 find something better than that. If my learned friends are right in 

 saying that the seals are outside the rule and the other animals are 

 within it, you must find some better reason. "Oh, but" says my 

 learned friend. Sir Kichard, "did you ever find a case of an apidication 

 of it to the migratory animals." There is a distinction — the migratory 

 animals. What is a migratory animal, pray? It is an animal that 

 goes away and comes back again, is it not? Is there any other defini- 

 tion to the word. Whether he goes once a week or once in three 

 months, or once in six months; whether he stays twenty-four hours or 

 three months or five months; does that touch the principle? If 

 there is no case in the books of a migratory animal, it is because it has 

 not arisen. Have you got a case where it is held that it would not 

 apply to a migratory animal? Do you find in the learned opinions of 

 these judges whom we have been reviewing, anything to show that they 

 would not have applied them to the animal, if it had been migratory; 

 anything to show that the reason of the rule, the principle, does not 

 touch the migratory animal? When you say migratory in distinction 

 to an animal that you would say was not migratory, the ditt'erence 

 between the seal and the bee, you speak only of the absence being 

 jieriodical, and longer continued. You do not touch either the certainty 

 of return, the value of the industry, the husbandry on which it is 

 founded, the care and protection that is given — you do not touch any- 

 thing that aft'ects the ])rinciple. These animals do not go as far as the 

 carrier pigeon goes. Was it ever heard that you may have property in 

 tlie tame pigeons that never go more than a mile or two from home; 

 but the carrier pigeon that crosses the sea and goes to another conti- 

 nent and comes back again, you cannot have any property in him ? Did 

 any judge ever venture upon any such absurdity as that? Then if 

 the distance does not make any difference, does the frequency of the 

 journey make any difference, or does the period of time, so long as the 

 animus revertendi remains comi^lete? The length of absence may be 

 very important evidence indeed on the question whether there is an 

 animus revertmdi; but when that is not questioned, wheu it cannot be 



