ORAL ARGUMENT OF HON. EUWARt) J. fllELPS. 55 



There is no animal on the earth that has not to contribnte, after liis 

 measure and accordiiij]^ to his place, to the requirements of niankindi 

 That is the law of nature. It would not be for their benefit to attempt 

 to preserve every one; but they are protected from extermination ; they 

 are protected from cruelty, from wronj?, and the proof of that is fouiul 

 in the fact that they do come back year after year, for these hundred 

 years, since mankind took possession of that Island, and have^ from 

 year to year, all that time taken the product of this herd. What bet^ 

 ter evidence do you want than that? They tell us they could defeat it 

 so easily. They bring these philosophers to inform us that if we failed 

 in these duties away would go these animals. Who then creates the 

 animus remrtendif I do not say that we created it in the first place^ 

 before the footsteps of man had reached those Islands; but who has 

 perpetuated it so that instead of forsaking the Islands, as these gen- 

 tlemen tell us they could be so easily induced to do, they have stayed 

 there from that time to this. 



"But they are free-swimming animals", says Sir Charles Eussell. 

 Who invented that term, and on what authority does it stand? What 

 does it mean? Those are questions that I think it would puzzle my 

 learned friend to answer. lie uses that as though it constituted an 

 impregnable position. "Free-swimming!" Is there any animal that 

 swims that is not a free swimmer'? And what is the difference between 

 a free swimming and a free fiying animal and a free running animal, or 

 a free staying animal? There are oysters, that are the subject of 

 property, wild. There are bees; there are deer; there are swans, and 

 there are pigeons. All but the oysters have some mode of locomotion 

 in some element. 



Then they say, you are making grouse and pheasants and partridges 

 property. These animals, these seals, are like the pheasants and the 

 grouse that are raised upon English estates, that is to say protected 

 there, fed there and used. There is an analogy that it is important to 

 observe. AVell, let us see. There you have a class of animals who 

 have, to a certain extent, the animus revertendi, and they are not prop- 

 erty. No suggestion can better illustrate our i^roposition, which is 

 that the property depends upon the conditions and the use. 



My learned friend raises pheasants upon his land, as his neighbours 

 do. They are hatched there; they are sheltered to some extent; they 

 are protected, and they go away, the nature of the animal. They 

 go away on somebody else's land, and that somebody else may shoot 

 them; and all my learned friend gets out of raising them is the privi- 

 lege of shooting them on his land at such times as the law allows 

 them to be taken, and in such a manner as the law allows. Because 

 there is no animiis revertendi that is capable of apprehension, of proof, 

 of being distinguished. All his neighbours have pheasants over the 

 County in which he lives; they are alike; you cannot tell them apart. 

 That some of them come back is highly probable; that many do not 

 come back is equally certain, and that many pheasants from other 

 estates come to him is also equally certain. 



Now applying the principle of law which I have been trying to state 

 to these animals, what is the difficulty that we encounter? The first 

 thing is that there is no certainty and no proof of this animus revertendi. 



The animus revertendi exists in his neighbour's pheasants to return 

 to him, and in Ms to return to them^ and they scatter about. The 

 attempt to separate those i)heasants and say that my learned friend's 

 were his, and Mr. A's his, and Mr. B's his, all over an English County, 

 is absolutely imx^ossible and equally unjust and unnecessary. If his 



