ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 57 



because they must return — to wliom this place is necessary, who derive 

 no protection or sustenance or advantage from anybody else in the 

 world, who are made the subject of this natural industry and hus- 

 bandry of great value, and the question is not on the right of i)roperty, 

 but on the right of extermination — not as against the mere individual 

 owner, but as against the Government to which they belong. 



2*^ow a word or two more and I shall be able to leave this subject. 

 As a concluding remark on this branch of the case, dealing with it thus 

 far upon purely municipal law, is not this the true and sound proposi- 

 tion; that inasmuch as there is a principle of law which includes many 

 animals of different varieties under the term property, and as that 

 principle of law undoubtedly does exclude otiier animals such as we 

 have been already si^eaking of as game, which might be property, and 

 since here is a new animal, that is to say, new in this inquiry, and the 

 question is into which class does it fall — within the class of those 

 animals in which property is maintained, or within those in which 

 property is not maintained, that the criterion is to ascertain what is 

 the principle and what are the circumstances that mark the distinction 

 between the two classes of animals. Is not tiiat the just criterion? 

 These seals cannot be put in both categories. They cannot be put into 

 the category of the bees and the deer and swans and pigeons, and at the 

 same time be in the category of the pheasants and the partridges and 

 the rabbits and English stags. It is the same law that includes one 

 set of animals on the one side and excludes the other. On which side 

 of the line do they fall? If it had ever been determined by authority 

 you could repose upon that. It has not. Is there any other way than 

 to see whether the facts in regard to the seals assimilate them to the 

 animals that are property, or assimilate them to the other. It is not 

 an extension of the law to include them. It is simply an application 

 of the principles of the law. 



In the case of the "Atalanta " in 6 Robinson's Eeports, which as the 

 Court are aware are the reports of the decisions of that great English 

 Judge, Lord Stowell, sitting in Admiralty, there are a few useful words, 

 as it seems to me, bearing upon this question of the operation of ])Tm- 

 ciples of law upon new cases. 



On page 458, Lord Stowell says : 



Under the authority of that decision. . . . 



he is speaking of some Admiralty case; the case itself is not material. 

 It is his language I quote this for. The question was whether a ship 

 was forfeited by a certain business that it had been engaged in, and it 

 had been argned that the shij) was not forfeited, only the property — 



I am warranted to hold that it is an act which will affect the vehicle without any 

 fear of incurring the imputation which is souietinies strangely cast upon this Court 

 that it is guilty of iuterj)olation in the law of nations. If the Court took upon itself 

 to assume principles in themselves novel, it might justly incur such an imputation; 

 but to apply establislied principles to new cases cannot surely be so considered. 

 All law is resolvable into general principles. The cases which may arise under new 

 combinations of circumstances, leading to an extended application of principles 

 ancient and re<;ognised by just corollary, may be infinite; but so long as tlie conti- 

 nuity of the original and established principle is preserved pure and unbroken, tlie 

 practice is not new, nor is it justly chargeable with being an innovation on the 

 ancient law, wlieu in fact the Court does nothing more than apply old principles to 

 new circumstances. If, therefore, the decision the Court has to pronounce in this 

 case stood ujjou principle alone, I should feel no scruples in resting it upon the just 

 and fair application of the ancient law. 



That is the language of that great Judge when he was sought to be 

 alarmed by the idea that, in dealing with a novel question, he was 

 extending the law. It is tlie business of Courts of Justice to inform 



