58 ORAL ARGUMENT OF HON. EDWARD J. PPIELPS. 



themselves of principles and to extend tlieni to new cases wlierc it is 

 necessary, 



Tlie case of the "Adonis" is anotlier decision of the same Jndge. 

 This is in Volnnie 5 of 0. Robinsoji's Ifeports; and perhaps this deci- 

 sion is more directly appropriate on the point I was discnssing this 

 morning, how the law of nations is to be collected in a case where it is 

 not established. 



• "This is :i case," says ho, "in which I have taken some short time to deliberate, 

 being imwillinn' to press with any dei^rce of uniuH-cssary severity the effect of pre- 

 sumption against tliis class of cases; more especially because it is one in which the 

 princij)les of law, though un(iue8tional)ly built n]i()U the just rights of war, must 

 be allowed to operate with some hardship on neutral conimcrce and b(;cause it is a 

 class of cases on which the Court has little authority to resort to, but has to collect 

 the law of nations from some such sources as reason, 8upi)orted in some slight degree 

 by the practice of nations, may appear to jioiut out." 



I read from page 159. 



There is a passage or two that I may read from the United States 

 Argument, i)age ITLJ, for convenience. One is quoted from Philliniore's 

 Treatise on International Law. 



Analogy has great influence in the decision of international as well as municipal 

 tribunals; tiiat is to say, the application of the principle of a rule which has been 

 adopted in certain former cases, to govern others of a similar character as yet unde- 

 termined. 



Then from Bowyer's Readings, page 88, is cited this line. 



Analogy is the instrument of the progress and development of the law. 



In determining this question there is another consideration which 

 seems to me to be altogether conclusive, in addition to all that I have 

 referred to, as pointing out which class of animals the seal under the 

 circumstances belongs to. There is a reason for all intelligent law. It 

 is founded upon the necessities of human att'airs, especially in regard to 

 property. Now, with regard to this English game is there any neces- 

 sity at all? I have shown that it is impossible, that it is altogether 

 unfair to undertake to make the specific game that arises on one estate 

 property against everybody else, because it gets as much from other 

 estates as it does from the one that claims it, on which it is born. 

 There is no extermination of the race of i)heasants going to take place 

 if such is not the law, and, therefore those wise considerations of the 

 common law of England in respect to game have been found right. 

 How is it with the seals'? If we have not the right of property the 

 animal perishes otf the earth. It is of no use to talk about treaties 

 that we may make. That is a matter not of right, nor of law. If we 

 have no property in this industry, this herd, this business, — call it what 

 you will — that we are in possession of, then the animal is gone, as in 

 every other instance his si)ecies, substantially speaking, is gone. Some 

 small remnant on one of those southern islands has been preserved at 

 a late date — by what? By the institution of this very claim and the 

 maintenance of it; but with that insignificant exception they are all 

 gone from the face of the earth. As pointed out by Mr. Carter in his 

 opening, the only means by which they can be preserved for the use 

 of America, for the use of any country, for the use of anybody, is by 

 sustaining the right which we claim. 



My learned friend says, Mr. Carter has dealt with the reasons. Well, 

 as I said this morning in respect to showing that a thing was right, is it 

 any objection to a rule of law that it is shown to be necessary to the 

 existence of the subject of it? If there is not sufficient in and of itself 

 as a matter of positive law to give the principle effect and efficacy, has 



