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It must be obvious

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point to which I am coming. as you, sir, with your acuteness, have already perceived-that it can have no bearing upon the question of property, either in the industry or in the seals. Is it alleged that the right of protection of their industry depends upon whether we kill wastefully or not? I should like an answer to that.

"Mr. Justice HARLAN. If the killing at sea is calculated to destroy the industry, it would seem to have some bearing on the question of protection, if that right to protect exists.

"Sir CHARLES RUSSELL. 'If. There is much virtue in an 'if.' "Mr. Justice HARLAN. I am making a distinction between a mere question of property in the seals or in the herd, and the question of the right to protect the industry on the islands.

"Sir CHARLES RUSSELL. That pelagic sealing may injure the industry on the islands, if it be so called, nobody doubts. That is not the question we are discussing; but I say that in respect to any right of protection of an industry, or in respect to any right of protection of the seal or of the herd, the question of the wastefulness of the means has nothing whatever to do with it, and can not give them a right which they have not got without it, or put us in the wrong if we are in the right.

"The PRESIDENT. Sir Charles, I must observe that there is a protection of an industry which is often called property to-day: what we call in French propriété industrielle;' that is, a sort of qualified property.

"Sir CHARLES RUSSELL. Could you give a concrete illustration, sir, of that law?

"The PRESIDENT. For instance, the right of authors, copyright. That is styled 'propriété littéraire' in our treaties. That is not property, in my personal view, but it is commonly called property in international language. *

"Lord HANNEN. I understand that you are contending now, that the need of the protection to make the thing valuable, does not establish that there is a right to [give] it that pro

tection.

"Sir CHARLES RUSSELL. No; I tried to say so, and I think I succeeded in saying so more than once, and I applied this to the right to the industry just as to the fur seal.

"May I say, sir, as you have introduced the question of copyright, there is no such thing as the recognition internationally of copy right or of patent right except by treaty. There is no such thing, and there is no country in the world that knows that better than America, because it is only very late in the day indeed that it has come into any arrangement with Great Britain of a protective character of that kind.

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"Now, I also desire to give in this connection an illustration of the position as to property and as to the right to pelagic

sealing by, not an ideal case, but by the case as we know it exists. I will put it, in the first instance, as if it were an ideal case. Assume pelagic sealing to be pursued for a century, and the island on which the seals breed to be undiscovered: can it be doubted that, in that state of things, there is a right to kill the seals in the manner called pelagic hunting? Can it be doubted? Then, if, at the end of a century, the island on which those seals breed is discovered, does that which for a century was a right which all the world might exercise cease to be a right, and does the mere fact that you have discovered the breeding place on those islands change that which was exercised by mankind in common as a right into a moral crime, an indefensible wrong, and all the rest of it?

"Now, I say this is no ideal case; this is the actual case you are discussing, because it stands confessed that, till the year 1786, the Pribilof Islands were unknown, and it was in that year, for the first time, that it was discovered that they were a breeding place for seals."

"But my learned friend,"1 said Sir Charles Motives of the United Russell, "in effect said this: We, the United States. States, are not making this claim from any selfish motives. We are here as the friends of humanity. We acknowledge that this is not our property absolutely. We are trustees for the world at large. We only ask to be permitted in the interests of mankind, for the benefit of mankind, to perform the office of trustees, as friends of humanity, as philanthropists, as champions of the interests of the world.” Commenting upon this aspect of the subject, Sir Charles Russell said:

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"Well, I am very far from doubting the sincerity of my learned friends; but I must be permitted to point out that, while accepting these professions as sincere, their demands seem to me to be exactly the demands which would be made by a selfish power making an effort to secure the seals for themselves; for what do they say? We are the owners of the Pribilof Islands in Behring Sea. They are pleased pathetically to describe those islands as 'the last home of the fur seal.' They say: 'Give to us, the tenants and owners of these islands, the power to exclude everybody but ourselves from the great expanse of ocean in which those islands are situate. Put an end to pelagic sealing in the Behring Sea, and not in Behring Sea only, but justify us in stretching out the arm of legal authority over a still wider expanse of ocean. Authorize us by your award to search, and if necessary to seize and confis cate, vessels that are engaged in this inhuman, this immoral traffic, or vessels that we suspect are engaged in this pursuit;

Mr. Carter.

and having given us that authority we will recognize our duty as trustees to mankind by giving to mankind the benefit of the fur seal at the market price."

United States.

Sir Charles Russell also commented upon Novelty of Claim of the "novelty" of the claim of the United States in respect of the seals. At various stages in the world's history nations had, he said, according to their varying powers, from time to time "advanced extravagant pretensions." But those pretensions, generally speaking, belonged to a comparatively remote period, when the rule of might rather than the rule of right prevailed, and before the moral force of public opinion had acquired its great controlling power. Assertions had been made of control, dominion, and sovereignty over a large extent of ocean without physical boundary and without any external marks of delimitation, and there resulted from those assertions a claim to exclude others from the given area and to deal exclusively with whatever was found in it. But this was a very different thing from an assertion of property in the particular animals which might inhabit the area, "and I say, subject to be contradicted, but without fear of contradiction," declared Sir Charles, "that this is the first time in the history of the world that a nation or an individual has ever claimed property in a free swimming animal in the ocean. I say, further, * that this is the first time that an attempt has been made to differentiate one particular animal from all the other animals that dwell during a a large part of their existence in the ocean."

Seal Herds.

Taking up the fifth question in Article VI. Property in Seals and of the treaty of arbitration, Sir Charles Russell said he would assume that it meant the assertion of a right of property in one of three different formsin the seals, in the "herd," or in the "industry”—and, as correlative to the right of property, the further right of protecting it by search, seizure, and confiscation. Now, he agreed with counsel for the United States that the question of property in the seals, or in the seals as a collection, group, or herd, depended upon the nature and habits of the animal and the physical relations of the United States to it; but it passed human comprehension, at least his comprehension, how it could be alleged that there was a property in the so-called seal herd if there was none in the individual seals. The whole was made up of parts, and if there was no property in the parts how could there be

in the whole? The question upon this part of the case of the United States was, therefore, Has the United States property in the individual seals? On this question Sir Charles asked the tribunal "to note the signs of distrust" with which the argument on the part of the United States was advanced. At one place it was declared that the United States did not insist upon this "extreme point" so that they might maintain an action of trespass for the capture of any individual seal in the sea or an action for the recovery of its skin, because it was "not necessary to insist upon it;" that "the conception of a property interest in the herd, as distinct from a particular title to every seal composing the herd," was "clear and intelligible," and that "a recognition of this would enable the United States to adopt any reasonable measures for the protection of such interest." 1 And in another place it was declared that while the United States Government asserted and stood upon "the full claim of property in the seals" which its counsel had attempted to establish, it was "still to be borne in mind that a more qualified right would yet be sufficient for the actual requirements of the present case." 2

Seal Hunting by

Indians.

At this point Sir Charles Russell said that be could not deny himself the pleasure of referring to the colloquy between Mr. Carter and some of the members of the tribunal in relation to the fact that the earliest known pursuit of the fur seal was pelagic, carried on by the natives along the coast as a means of subsistence, and as a means of affording articles for barter, and in that way furnishing them for commerce. After quoting the passage in which the Baron de Courcel inquired of Mr. Carter whether there was a legal distinction "between what an Indian is allowed to do for himself and what he may be allowed or permitted to do in the service of an European or civilized man,"3 Sir Charles proceeded as follows:

"My friend evades the point-does not even appreciate the point. It is not a question of there being greater or less difficulties in dealing with barbaric tribes-it is the question whether it is not difficult to draw the legal limitation between what is admitted to be a thing that the Indian may do for himself, according to his barbaric methods, and what he may do if

Argument of the United States, 101.

2 Id. 133.

3 Supra, 861.

employed at the instance of civilized man. The learned president recalls my friend to the question with this observation:

"Do you find that there is a substantial legal difference between the two cases?

"Mr. CARTER. There is a substantial one.

666 The PRESIDENT. Between the case of an Indian fishing on his own account, and an Indian fishing on the account of a civilized man? “Mr. CARTER. I think there is a very substantial one.

"The PRESIDENT. A substantial legal one?

"Then we get to that broad ground which is always the refuge once we are trying to bring these vague, undeterminate propositions to the touch of legal principle.

"'Yes,'

"says Mr. Carter,

"when I speak of "legal" I mean moral. We are on international grounds.'

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"Here we get back to that same fallacy which I have endeavored to expose in a few sentences, that if you can make out to your private satisfaction that a thing is against morals, or against the law of nature (whatever the law of nature means in the connection in which it is used) it is therefore against international law: it is therefore to be reprehended.

"But I do not end this discussion here. My friend Mr. Carter then proceeds, it having been pointed out to him by Lord Hannen that the mode of hunting pursued by the natives was not confined merely to their sustenance, but that they were the suppliers, in the first instance, of the skins of these wild animals-fur-seals and others included.

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"The distinction which I mean to draw is a distinction of a resort to the seals for the purpose of the personal use of the people, such as they were in the habit of making before they were discovered by civilized men-the distinction between that pursuit and that which is promoted by civilized men for the purpose of supplying the world with these skins. That is the distinction. The first pursuit which is confined to the barbarians is not destructive of the stock. Nor is the other, as long as it is limited to certain very narrow proportions and conditions.'

"Well, the whole legal proposition is given away in this discussion. Then my friend continues:

"But when it is increased then it does threaten the stock.

What must

you do then? You must adopt those measures which are necessary to preserve the stock; and what are the measures which society always employs for that purpose? I have detailed that already-it is to award the institution of property.'

"Now, did ever an able man present so inconsequential an argument as that to a tribunal of intelligent judges? It is said: The Indians had a right to pelagic sealing: They had a right to it, and they carried it on even for the purposes of commerce: Civilized men carried it on, but carried it on only to a small extent, and they had a right to carry it on to a small

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