54 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 



iiidnstiy. And in eonncetion witli tliaf, becanso that standinf? alone 

 would not be enough, that is to say, would not apply when the animal 

 was temporarily gone, we have this constant and certain aniiuHs rever- 

 tendi. 1 cannot found an industry upon wild aninals upon my land 

 that would make them property if they go away according to their 

 nature and do not come back again. JVly husbandry is not enough, 

 because when the animals are gone they leave us the animus revertendi. 

 On the other hand, if they merely came back by habit and I did nothing 

 to them and made nothing out of them, that would not create a prop- 

 erty, I must put the two together. I must combine possession and the 

 animus revertendi, and combine it for a useful purpose, and combine it 

 with all the custody that is necessary and all the habits of the animal 

 admit of, whatever they are. 



But, says my learned friend, you must create the animus revertendi. 

 With great respect, what does he mean by that? Create the animus 

 revertendi in an animal? — create an instinct which, so far as the word 

 may be applied to an animal below the scale of humanity, is a mental 

 quality? Suppose you could, how does that differ from the animus 

 revertendi which you perpetuate? Can that make a difference? It may 

 exist before your industry begins, and your industry may be based 

 upon it, but I cannot conceive how it can be created. 



We have the speculations of a number of learned gentlemen gathered 

 together by the British Commissioners on the question which 1 was 

 discussing this morning — what would become of these seals if they 

 were turned away from the islands in which they have had their home 

 ever since the Creator first looked upon his work? No man can answer 

 that question. Any man can speculate about it with more or less wis- 

 dom. They assemble the speculations of several gentlemen", some of 

 whom admit tliey have spoken without much thinking, that if you cease 

 to care for the seals, which you do if you allow them to be disturbed or 

 too much interfered with, they will go away and notcome back — they will 

 go to the Commander Islands or to the Kurile Islands, where the other 

 seals go, or go somewhere else. As I said this morning, I do not under- 

 take to dispute that, because I can no more dispute it than they can 

 assert it. It is pure conjecture, and it may be true for aught I know. 

 Assume it to be true as these learned naturalists or some of them 

 believe. We are and have been preserving that animus revertendi by the 

 care aud the protection they receive there. "What do you do to them," 

 says my learned friend the Attorney General. "You only kill them." 

 Only kill them ! Do not we preserve the whole race from extermina- 

 tion? The cruisers that surround the Islands, the agents and emplo3M3S 

 who are on the Islands, and the strict rules that are enforced there in so 

 many particulars against their disturbance, and against their injury — 

 does not that protect them? If the seals were capable of having a 

 case stated for the opinion of my learned friend, whether in as nnich as 

 they are killed there more or less every year, they had not better leave 

 the Pribilof Islands, and find some other place, is there any doubt 

 about the advice they would receive? Their lives are not safe any- 

 where; they are surrounded by all sorts of enemies, human and other- 

 wise; to preserve all their lives is impossible. Would not they be 

 advised that there is no other spot in the world where they would be 

 as well preserved, where their reproduction would be kept so safe, and 

 where so many of them would be spared as there? That a ])art of 

 their life goes to the service of humanity is a proposition that is trap 

 of all created things. There is no place for any creature to go and be 

 safe. There is no life, part of which does not go to the public service. 



