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law of nations may be developed as the world thinks wise; and I point to this for the reason that my learned friend in the citations from international writers that he has made, and in a much larger number which are given but to which he did not refer, did not draw that distinction which must be drawn between those writers and authorities (I think erroneously called authorities) who deal with the subject with a view to discover the metaphysical grounds, the ethical reasons which may be advanced in support of this or that view, and those writers (much less interesting but much safer guides) who confine themselves to laying down what rules have in fact obtained the consent of nations. *

*

"The PRESIDENT. First, may I beg to put a question? You speak of international law as comprising the customs and usages of nations, on which different nations have agreed.

"I suppose you mean not only by written agreement, but also by right of usage?

"Sir CHARLES RUSSELL. Certainly. When I say 'to which they have agreed,' of course I mean not merely or necessarily by a formal or express or written agreement, but by any mode in which agreement may be manifested, by which the Tribunal may arrive at the conclusion that they have so agreed.

"Senator MORGAN. Including acquiescence?

"Sir CHARLES RUSSELL. Certainly. I use agreed' in that broad and general sense.

"Lord HANNEN. As a question of evidence?

"Sir CHARLES RUSSELL. As a question of evidence: the question always is, placuitne gentibus?"

The Question of Pelagic Sealing.

At this point Sir Charles Russell entered into a discussion of the uses and value of the fur seals, arguing that the skins were an article of luxury, which had been enjoyed in Europe for less than forty years; that the seal fisheries were not a prominent element of consideration in the purchase of Alaska by the United States; and that, as the seals are large consumers of food fishes, it might under certain circumstances be beneficial to mankind to kill them; and in this relation he referred to efforts to exterminate the hair seals in certain Danish waters, where they prey upon the salmon. The Case, the Counter Case, and the Arguments, of the United States had, he said, been full of denunciations of pelagic sealing. It had been "denounced as a crime and a great moral wrong-a little worse than murder, and almost as bad as piracy." He wished to examine the subject for a moment, and see whether there was not "pervading this style of argument the same kind of exaggeration" as was addressed to "the industry itself." He started with the "initial fact" that pelagic sealing was "the oldest pursuit of the

fur seal historically known." It was a pursuit followed by the aboriginal inhabitants along the coasts in question. And how stood the facts as to its effects? In every case which had been referred to of the evil caused by the destructive agencies of man as regarded seal rookeries in other parts of the world, "the cause of the extermination of the fur seal species was the indiscriminate slaughter upon land." He had been "unable to repress a smile" when reading the "beautifully descriptive" but "most imaginative" accounts in the literature of the United States, as to "the merits and blessings of killing on land." In this relation he referred to a statement in the report of the British commissioners' as to the "unnatural and destructive character" of the system of "driving" practiced on the Pribilof Islands; and he also contended that the evidence showed that the lessses of the islands had of late years "themselves been committing the grievous moral crime of killing females." But, what was the relevance of the argument as to the wasteful character of pelagic sealing to the Case of the United States? Was it because the mode pursued by Canadian sealers was wasteful that they had no right? And had the United States an exclusive right, because their method was not wasteful? Did counsel for the United States admit that if the Canadians had, te use their formula, a means of shooting the seals which was not wasteful, they had the right to shoot them? At this point the following colloquy occurred:

"The PRESIDENT. That argument would perhaps affect rather the question of regulations.

"Sir CHARLES RUSSELL. You are anticipating exactly the

Counter Case of Great Britain, 261.

The meaning of the word "driving" is this: When the seals arrive at the islands the old bulls take possession of the females and with them occupy the rookeries, while the young bulls are compelled to "haul" off and occupy different ground. In order to avoid disturbance of the rookeries, the young bulls, commonly denominated "bachelors," from which the supply of skins is intended to be obtained, are then driven overland to the killing places, where a certain proportion is selected for killing, the remainder, consisting of bulls too young or too old or of females incidentally gathered up from the margins of the rookeries, being allowed to return to the water. The purport of the statement referred to by Sir Charles Russell was that, owing to the lack of the means of progression on land, many of the seals suffered permanent injury from driving, and that with the decrease in the number of "killable" males on the islands, the proportion of females included in the drives increased. The relation of driving to the diminution of the seal herd was one of the points of difference between the United States and British experts.

point to which I am coming.

It must be obvious

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 protection.

"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.

*

"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," 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 Rus

sell 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 confiscate, 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."

Property in Seals and
Seal Herds.

Taking up the fifth question in Article VI. 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 forms— in 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

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