ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 291 



claim with all respect to this high Tribunal that so far from interfering 

 with it, we are promoting and extending it; that the freedom of the sea 

 in the language of our OlianceUor Kent is meant for "inoffensive j)ur- 

 poses," not for the purposes of license to do wrong. 



Under those circumstances if it be true that we have property to a 

 certain extent, at any time, upon the islands, then the question is, when 

 is that |)roperty lost"? Is it lost in the herd when thnt lierd is aj^proach- 

 ing the islands for its annual and necessary migration? Is it lost in 

 the females of the herd when attending to their young on the islands, 

 and i)assing outside the territorial line? They leave the young on 

 shore, where they perish, if their mothers are destroyed. In one or the 

 other of those two cases, or nowhere, is the property lost. It is either 

 lost in the annual migration when the mothers are travelling to and 

 from their home or it is lost when the mother, going out for sustenance 

 for herself and for her young, is killed by the pelagic sealer. I submit 

 to the court that by municipal law our right is everywhere recog- 

 nized. In Mr. Phelps' argument this subject is discussed most care- 

 fully and clearly. I shall read merely a few extracts in order to give 

 point and accuracy to my remarks. I read from page 132 : 



Even upon the ordinary principles of municipal law, as administered in courts of 

 justice, such a property would exist under the circumstances stated. 



The circumstances, that is, the migration of the seal and the tempo- 

 rary absence of the mother. 



It is a general rule, long settled in the common law of England and America, that 

 where useful animals, naturally wild, have become by their own act, or by the act 

 of those who have subjected tbem to control, established in a home upon the land of 

 such persons, to which the animals have an animum revertendi or lixed habit of return, 

 and do therefore regularly return, where they are nurtured, protected, and made 

 valuable by industry and expenditure, a title arises in the projirietors of the land. 



Can there be any dispute as to that proposition being sound? And 

 Low far does that title go? Does it not, as we state here, enable the 

 owner 



to prevent the destruction of the animals while temporarily absent from the terri- 

 tory where they belong; a title, however, which wonld be lost should they abandon 

 permanently their habit of return, and regain their former wild state. 



Here is the only difference, I submit, between the case of these ani- 

 mals, which we will call amphibious animals, and other animals that 

 never leave their home. Our title is absolute. I do not recognize that 

 there are here mitigated forms of property. What is mine is mine, 

 only in this case the right is subject to defeasance, and different in that 

 respect from other kinds of property. I cannot lose my title to my 

 sheep, my cow or my horse except by my own act or the superior act 

 of a suj)erior power; but here my t^tle depends, to a great extent, upou 

 the will of the animal. The animfii has an animus in this case; it has 

 no animus in the other. Where it is a tame animal in every sense of 

 the word, recognized as such by-law, and subject to my control, always 

 and forever, then I cannot be divested, even if it should stray and go 

 into the territory of another. If he kills it he is guilty of a crime ; and 

 if these animals leave without that intent then they have divested us 

 by their act of the property notwithstanding our intent to keep it. 



Then Mr. Phelps j^roceeds and he justifies this assertion: 



It is under this rule, the justice of which is apparent, that property is admitted 

 in bees, in swans and wild geese, in pigeons, in deer, and in many other animals 

 ovig\n&Wj f era' natura., but yet capable of being partially subjected to the control of 

 man, as is fully shown by the numerous authorities cited in and appended to Mr. 

 Carter's argument. 



