74. ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



bcH'ome the i)i-opric'tors of these ishiiids, and stood in the same situation 

 that the United States Government now do. I shall proceed on the next 

 hearing to take a hir,i>er view of that subject. Thus far I liave confined 

 myself to the principles of municipal law, and I have tried to point out 

 that upon the great facts, undisputed excei)t so far as the three minor 

 particulars I have discussed to day are concerned, and not disputed 

 successfully I think I am warranted in saying in those particulars, we 

 have a right of property in this herd of animals where they are situated, 

 and as they are situated; in view of the husbandry and industry estab- 

 lished in respect of theiu; in view of the control under which they were 

 brought; and of the animus revertendi, which causes them constantly 

 to return voluntarily to our control. 



My friends enquire : " What have you done?" They say : " You have 

 done nothing except to kill the animals — you select them for killing". 

 We have, in the first place, by Act of Congress, appropriated this terri- 

 tory and reserved it, which, otherwise, the Government might occupy 

 for other purposes or might make subject to entry and sale as the lands 

 of the Government of the United States are made, except when reserved 

 for special purposes. By special Act of Congress these islands are con- 

 secrated to the use of these animals. Under the Statutes of the United 

 States, and by the superintendents of the United States, appointed by 

 the Government, and i)aid by the Government, they are Avatched over 

 and protected from the extermination that would otherwise certainly 

 come to them. The cruisers of the United States surround the islands; 

 and thus we have founded this valuable husbandry. If we have not 

 confined the seals more closely it is not because we could not do so if 

 we desired, but because it would have been not merely useless, but 

 prejudicial to the animal. 



Here are two classes of animals — wild animals — valuable animals — to 

 one class of which the law annexes property so long as the animus con- 

 tinues, which returns the animal to the possession. The animus rever- 

 tendi is nothing but an element of possession — it takes the place which, 

 in domestic animals, entire confinement takes. It is a mere element. 

 It takes the place of the fence or the wall that would restrain animals 

 who, if so restrained, would perish and lose their usefulness. There are 

 other animals, and the distinction was pointed out the other day, under 

 which the law of England — probably the law of other countries — applies 

 a diiierent rule because the conditions are entirely different. 



Now to which class do these seals belong? What is the distinguish- 

 ing fact on which this legal principle attaches? That is the question. 

 We have seen that the animals are as diverse as they can be. They 

 belong to every species. We have seen that the confinement is as dif- 

 ferent as the animals themselves. What is the principle? It will be 

 found in the English cases that were cited by my associate Mr. Carter 

 in the opening. It is the establishment of the husbandry — the indus- 

 try — which means, in the first place, care, painij, protection, ex])enditure 

 of money, on the part of the proprietor, which obtains the product for 

 himself, and for the world, without which the animal would perish. 

 There is the criterion. That the animus revertendi so largely enters 

 into it is because it is so commonly the case that without the animus 

 revertendi it is not subject to any custody that would make it useful — 

 that if you shut it uj) in the yard or in the building you have destroyed 

 it. It is the husbandry — the industry. 



That is the great leading fact that distinguishes those from the wild 

 deer of Scotland or the wild deer of America. It was the husbandry 

 that was founded and maintained by taking such i)ossession as the 

 uatUre of the animal admitted of; and I respectfully say that there is 



