56 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



pheasants go away others come to him. If his neighbour kills some 

 that were hatched on his premises, he kills others that were hatched 

 on his neighbour's premises. 



Now let me state a different case. I have a friend not far from my 

 residence who has undertaken to import into America, where the bird 

 does not belong and is not indigenous, English pheasants. He has sent 

 abroad and obtained the eggs of the pheasants from England and on 

 his estate has caused them to be bred. He protects them in the winter 

 without which protection they would i)erish in that climate. He feeds 

 them and looks after them and nobody else has any English pheasants. 

 It has an animus revertendi of course, because if it did not go back 

 it would perish. ISTow by the law of England if those pheasants are 

 his property when on his land, every one of them being recognizable 

 and capable of proof, brought there by him as well as protected, if 

 when they are on my land and with my eyes open to that fact I under- 

 take to kill one, I should like to know by the same law of England if 

 I am not responsible for it? 



No case can be plainer. Why is the same pheasant under the same 

 law property on that man's estate and not property on the estate of 

 my learned friend ? Simply because the conditions are changed, because 

 in the one case he has a wild bird which without possibility of identifi- 

 cation goes and comes as the other birds go and come. 



Lord Hannen. — As you speak of English law; I cannot admit that 

 if you give a foreign bird its freedom in your country, you would be 

 entitled to say it is yours wherever it flew, I cannot admit that that is 

 English law. Take a marked exami)]e of that. Those who first intro- 

 duced the Himalaya jiheasant and the golden pheasant, they turned 

 them out and gave them their freedom, they are subject to the general 

 law applicable to wild pheasants. 



Mr. Phelps. — But if the bird, in the exercise of its own habits, goes 

 abroad and returns again, under the circumstances, it has seemed to 

 me — perhaps because I am more fjimiliar with the law of Vermont than 

 with that of England, that the Court which administered there what 

 we sui)pose to be the law of England, would hold, in the case of this 

 foreign bird that went abroad temporarily and with a constant animus 

 revertendi to its owner, that there was a right of property that could be 

 protected against wanton destruction. Take it that the estate is on the 

 borders of Lake Ohamplain, which runs up to Canada, and is public 

 water on which Canadians have a right, under the existing Treaties 

 between the countries. Suppose they comiB down on Lake Chamijlain 

 for the purpose of shooting those birds in the breeding time whenever 

 they cross the owner's line, and exterminating the race, is there no jiro- 

 tection? I must defer to His Lordship's tar better knowledge of the 

 law of England, but I may be permitted to say, under the law of Ver- 

 mont they would be most certainly protected. But the illustration, of 

 course, depends on the view that is taken of that particular case. It is 

 but an illustration, and I do not care at all to insist upon it. 



There is another difference. The law of England in respect to this 

 game has become established. It is assumed by courts of justice as 

 being the established law, and they would spend no time in discussing 

 what the law would or ought to be if it was to be made over anew in a 

 new case. But even in that case they would probabl^^ come to the 

 same conclusion in respect to game being the subject of property 

 that they have now, because it would stand upon the same reasons, 

 and the same course of reasoning would conduct to the same result. 

 You have here animals that are quite sui generis, animals that return 



