Nor was the contention of the United States, said the British Argument, in any way advanced by an appeal to international law. It was incorrect to say that the best international law had arisen from precedents that had been established when the first occasion for them arose, undeterred by the discussion of abstract and inadequte rules. Law so made would not be international law at all. The law of nations is based on the consent of nations, and is gathered from their practice and the authority of writers.' A tribunal professing to administer international law could not create novel principles antagonistic to established legal principles, nor could the consent of nations be presumed in favor of such novel principles. tion Apart from Property. seas. "The United States, assuming that their Question of Protec- claim to property fails, endeavor," said the British Argument, "to establish an independent right to protect the seals on the high This is a contention wholly devoid of legal authority." The right to protect depended on the existence of property. The exclusive right, ratione soli, to take possession of animals on land "does not carry with it a right to protect such animals when they leave the land. An abstract right of protec tion (such as is here claimed), distinct from a right of property in the animal sought to be protected, can not exist. It would involve the right to make the protection respected, and therefore an interference with the equality and independence of other nations upon the high seas; an interference which must take the concrete form of a right of visit and search. That such rights do not generally exist in time of peace, except in the case of piracy, is too elementary a proposition to need demonstration. Nor is the case altered by the fact that the claim to protect is based on the assumption that the fish may be proceeding to a place within the dominions where an exclusive right to take possession would arise. That no rights exist till this exclusive right has come into being is again too elementary a proposition to need demonstration." 2 The views set forth in the written arguments Mr. Carter's Oral of counsel were elaborated in their oral arguments, and in order further to elucidate the contentions of the two governments, I will present certain Argument. Kent, Int. Law, 2d ed., by Abdy. 4; Triquet r. Bath, 3 Burr. 1478 1481. Stephen's Blackstone, 7th ed. II. 19. 5627-54 spect of Animals. points and passages in the oral argument of Mr. Carter for the United States, and of Sir Charles Russell for Great Britain. In the course of his discussion of property Husbandry in Re-in animals, Mr. Carter, after maintaining that, where wild animals are by the art and industry of man made to return to a particular place to such an extent that the possessor of the place can deal with them as if they were domestic animals, his property in them continues, no matter how far away they may go, so long as they have the intention of returning, said: "I may state another proposition fully substantiated by these authorities. It is scarcely another proposition indeed. It is almost the same; but the language is somewhat different, and I may be justified, therefore, in stating it in a different form: That wherever man is capable of establishing a husbandry in respect to an animal commonly designated as 'wild,' such a husbandry as is established in reference to domestic animals, so that he can take the increase of the animal and devote it to the public benefit by furnishing it to the markets of the world; in such cases the animal, although commonly designated as wild, is the subject of property and remains the property of that person as long as the animal is in the habit of voluntarily subjecting itself to the custody and control of that person. * "The PRESIDENT. Mr. Carter, what would be your legal definition of the word 'husbandry' as you just used it? Would it be merely the fact of gathering the increase of an animal? "Mr. CARTER. Yes. "The PRESIDENT. That is enough to constitute husbandry in your view? "Mr. CARTER. Taking an animal, caring for it, preserving the stock, and taking the increase for the markets of the community-that is husbandry, I suppose; the same sort of husbandry that is exercised in respect to sheep, horses, cattle, or any other of our domestic animals. The PRESIDENT. I better understand your meaning by your definition than by your simile or your comparison. "Mr. CARTER. Well, it seems to me that the definition is good; and it seems to me that the analogies of the animals to which I allude are appropriate. "Take the case of wild swans and geese. They are generally held not to be the subject of property. The law, however, takes notice of the exception where those animals have been so far reclaimed that they will continually and habitually resort to a particular place. There the law says they are property.* Why does the law say that? Because there is a public utility which may be subserved by that. If you allow the possessor of the place to which they resort to have the right of property in them he will devote himself to the business of reclaiming those animals, and consequently society will be supplied with those animals, whereas otherwise it will not. Property is the price which society must pay for the benefit which is thus gained from those animals. They are the product of the art, and the industry, and the labor which is expended upon them; and being that product, the benefit of it is properly awarded to the person who exhibits that art and industry. "The PRESIDENT. Do you mean to say that the seals reverted to the Pribilof Islands on account of the industry carried on there? "Mr. CARTER. Yes. "The PRESIDENT. Perhaps you will come to that later in your argument. "Mr. CARTER. I hope my argument will not be anticipated. I shall not fail to complete the analogy. I am now looking to these other instances. Take deer. Why is it that as long as deer are kept for the purposes of sport the law will not regard them as property? Because as long as they are kept for such purposes they subserve no useful social purpose; but the moment a man undertakes to reclaim deer, to take care of them, to feed them, to treat them as he does domestic animals and to supply the markets of society with venison from them, he is awarded the rights of property in them. * "Take the case of bees. Nothing can be more wild in its nature than a bee. That nature is not in the slightest degree changed when a hive is put inside of a box on the premises of a private individual; and that is all it is necessary to do. But what is the consequence of that? It is that a supply of honey may be taken from that animal, and a much greater supply than if you were driven to hunt through the woods to find hives. The consequence is that when that hive swarms, the swarm can be taken and put in another box and thus the number of swarms be multiplied indefinitely and the product of honey indefinitely increased. That is a great service to society. It furnishes it with an article of great utility which otherwise it would not have, or would not have in anything like the same degree of abundance; and therefore the art and industry, simple though it be, which is expended upon those particular bees, is rewarded by assigning to the possession of the place where the hives are a right of property in the bees. Application of Doc trines to the Fur Seal. * "Now, let me see whether those doctrines apply to the case of the fur seal or not. In the first place, he comes to the Pribilof Islands voluntarily, and there submits himself absolutely to the control, custody, and disposition of the owner of the place. In the next place, after migrating from that place he returns to it in obedience to the most imperious of all animal instincts. Nothing can stop him unless he is driven away. What is the social utility to subserve which * this habit offers an opportunity? Man is enabled by means of it to practice a species of husbandry. He can take the annual increase of that animal without in any respect diminishing its stock. In other words, he can deal with the animal precisely as he does with domestic animals and precisely as if the animal were domestic. Therefore we find here all the elements, all the foundations, upon which, as Blackstone calls it, property per industriam stands. You may ask what care, what industry man practices in reference to the seal. In the first place the United States, or Russia before the United States, carried thither to these islands several hundred people, and instituted a guard over those islands and preserved the seals and protected them against all other dangers except that of being slaughtered in the manner which I have described-a very great labor and a great deal of expense. The seals are freely invited to come to those islands. No obstacle is thrown in their way. Their annual return is cherished in every way in which it can be cherished. Very great expense is undergone in extending this sort of protection over them. In the next place, and what is particularly important, the United States, and Russia before. the United States, practiced a self-denial, an abstinence, in reference to that animal. They did not club him the moment he landed and apply him to their purposes indiscriminately, male and female. They did not take one in this way. They carefully avoided it. They practiced a self-denial. And that self-denial, and the care and industry in other respects which I have mentioned, lead those seals to come to those islands year after year, where they thus submit themselves to human power so as to enable the whole benefit of the animal to be applied to the uses of man. Let me ask what would have been the case if this care and industry had not been applied? Suppose the art and industry of the United States and its self-denial had not been exerted, what would have been the result? We have only to look to the fate of the seal in other quarters of the globe where no such care was exerted, to learn what would have been the result. They would have been exterminated a hundred years ago. ** "Therefore, I respectfully submit to you that the present existence of that herd on those islands-the life of every one of those seals, be they a thousand, or be they five millions-is the direct product of the care, industry, labor, and expense of the United States; and they would not be there except for that care and industry." * Limitations on the Do The idea that the title to property is not absolute, but is coupled with a trust for the minion over Things. benefit of mankind-an idea expressed in his written argument-was elaborated by Mr. Carter in his oral argument. As illustrations of his meaning, he gave several examples showing, as he maintained, the obligatory character of the trust for mankind and the duty to work it out through the instrumentality of commerce. These illustrations were as follows: "Let me suppose an article like india rubber, which has become a supreme necessity to the human race all over the world. It is produced in very few places. It is possible that the nation which has dominion over those places might seek to exclude it from the commerce of the world. It might go so far as to attempt to destroy the plantations which produce the tree from which the gum is extracted. Would such an attempt give any right to any other nation? Most certainly it would! It would give a right to other nations to interfere and take possession, if necessary, of the regions in which that article. so important, so necessary to mankind, was alone grown, in order that they might supply themselves. "The PRESIDENT. Do you mean a legal right? * * * * "Mr. CARTER. I mean a perfect legal right in international law. * In international law we have a whole chapter in regard to the instances in which one nation may justly interfere in the affairs of another. Take one instance, which is generally spoken of as the means adopted to 'preserve the balance of power.' When one nation in Europe seeks to so extend itself as to threaten what has been styled the balance of power, this has from an early period in European history been deemed a cause of interference by other nations, and, if necessary, of war. ** ** "The PRESIDENT. It is one of the forms of self-defense. "Mr. CARTER. * The coffee of Central America and Arabia is not the exclusive property of those two nations; the tea of China, the rubber of South America, are not the exclusive property of those nations where it is grown; they are, so far as not needed by the nations which enjoy the possession, the common property of mankind; and if the nations which have the custody of them withdraw them, they are failing in their trust, and other nations have a right to interfere and secure their share. "Lord HANNEN. May they sell them at their own price, although it may be a very high price? * "Mr. CARTER. Yes, until they come to put a price upon them which amounts to a refusal to sell them-when they arrogate to themselves the exclusive benefits of blessings which were intended for all, then you can interfere. Upon what other ground can we defend the seizures by the European powers of the territories of the New World-the great continents of North and South America? * They never asked permission; they took them forcibly and against the will of the natives. * ** That policy has been pursued by civilized nations for centuries. Is it robbery, or is it defensible? I assert that it is not robbery, because those barbarous and uncivilized peoples did not apply the bounties they * * |