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?

666 Mr. CARTER. There is a substantial one.

"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.'

*

"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.

"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

extent so long as it did not affect the stock: But when it begins to affect the stock then rights change-that which was a right the day before ceases to be a right the day after that event begins to happen;' and this tribunal is asked to do what?— Not to declare what the property rights had been and were, but is (to use the language of my friend), to award the institution of property. I say that it is not the function of this tribunalit is a misconception of the function of this tribunal to address any such argument to it."

Seal.

As affecting the claim of property, Sir Classification of the Charles Russell discussed the question as to how the seal was to be classed. Was it a "fish" or an "animal," and, if an animal, a "land animal” or a "sea animal?" In the legislation of the United States it was spoken of in relation to "fisheries;" but this might not be very important. What were its natural appliances for living on land? Could it progress on land with facility? Did it get its support, or any part of its support, from the land? "No," replied Sir Charles, "the animal is one which nature has not adapted for easy progression on land. It has got no legs; it has got no feet. It can flop with great rapidity for a few yards, fifty or sixty at the outside, and then falls down. exhausted; and a curious circumstance in relation to it is this, that it is manageable on land because it is wholly helpless upon land, and has not been furnished by nature with appliances which enable it to easily progress upon land. On the contrary, it is admitted that upon the sea it is at home; that it is capable of easy progression many miles in a day, without any unusual strain upon its vital powers."

Sir Charles Russell next discussed the Absence of Care by absence of care or industry by man in respect of the fur seal. On this branch of the subject

Man.

his argument was as follows:

"Now, it is said that these animals resort to the islands to breed, and resort there in compliance with what has been picturesquely described as the imperious instincts of their nature.' They do.

"And when they get there, what do the representatives of the United States do? Can they do anything to improve the breed? Nothing. Do they make any selection of sire and dam, of bull and cow? Indeed, could they? No. What do they do? They do two things, one positive the other negative, and two things only. The positive thing is that they do what a preserver-game does; he has a gamekeeper to prevent poaching; they have people on the islands to prevent raiding. The

negative thing that they do is that they do not kill all. They knock on the head a certain number, but exercise a certain amount of discrimination or a large amount of discrimination. That is the whole sum and substance of what they do, no more, no less.

"The only thing that nature does not do is that she does not knock them on the head.

"Do they do anything to induce them to go there? No, they do not. On the contrary, if they were to attempt by any kind of artificial means to provide for the reception of the seals, it would have the effect of driving them away, not of inducing them to come. Unlike the case of the bees,-the wild hive of bees, for which the man desiring that hive provides a mechanical contrivance, and also the beginning of a supply of food for them to induce them to form their combs of honey,-unlike the case of the doves, for which the owner supplies food and a dovecote where they get shelter from the weather, the owners of the Pribilof Islands do nothing; and if they were to do any thing, it would have the effect of repelling rather than of inducing them to come.

"Now, let me go a little further. It is said that they come to the islands, and I think I must refer to the very words in which this is put,-1 could not do justice to the pathetic language used in this case if I did not read it,—it is said, not only do they come to the islands, but that they voluntarily submit themselves to the control of man,' and have entered into a kind of treaty (pact' I think is the actual word used) to yield up a certain proportion of their skins in consideration of the protection that man affords them in return for it.

"Now, what is the meaning of that phrase, 'voluntarily submit themselves to his power'? Does it, in fact, mean more than that they come to the islands and breed, and that, being on the islands to breed, they can be the more readily knocked on the head? They submit themselves to the control of man just in the same sense, and in no other sense, as they submit themselves to the control of the killer-whale when they go out into the sea where the killer-whale can catch them. They are safe from the killer-whale on land; but they are obliged by the imperious instincts of their nature,' to return to the sea; and it would be as true to say that they voluntarily submit themselves to the ravages of the killer-whale as to say that by resorting to the islands they voluntarily submit themselves to the control of man. You might as well say the turtle, that comes to deposit its eggs in the sand to be hatched by the rays of the sun, coming upon the land indeed by the imperious and unchangeable instinct of its nature' submits itself to the control of man because man may take advantage of the opportunity to knock it on the head; or, as my learned friend reminds me, may begin by turning it on its back and keeping it on its back a certain time before it is knocked on the head."

tendi.

It was said by the United States that the The Animus Rever- seals had, by the "imperious and unchangeable instinct of their nature," the animum revertendi. This contention involved, said Sir Charles Russell, "an entire misconception of the doctrine of animus revertendi." No case had, he declared, been cited in which this doctrine had ever been applied to the case of migratory animals or to any animal unless the habit of returning operated after a short interval, calculated by hours or perhaps by days. Could it be applied to the wild ducks that breed in northern Canada and at another season go south, afterward returning to the North? Indeed, the doctrine had no bearing on the case of an animal spending half its life in one place and half in another. The fur seal might, he maintained, as truly be said to have the animus revertendi to the ocean as an animus revertendi to the Pribilof Islands. But there was yet another ground on which the doctrine had been misconceived. No case had been cited where the animus revertendi had been invoked in support of the right of property, except where the animus had been induced by the effort or industry of man. In respect of some classes of animals, such as pheasants, rabbits, grouse, and hares, the law refused to recognize any right of property, though there were cases in which they were actually induced to return by having homes and food provided for them. Yet no case had said or could say that your neighbor might not shoot them as wild animals when they were off your land.

ty Ratione Soli.

It had been stated, continued Sir Charles The Right of Proper- Russell, that the seals when on the Pribilof Islands were the absolute property of the United States or their lessees; and the question had been asked, If this were so, when did they cease to be their property? There was much virtue in an "if." His learned friends had utterly failed to grasp-he could find no trace of it in their arguments-the distinction between the right to take a thing. when it is on your land, from which you can exclude everybody else, and an absolute right of property in the thing itself. Under all systems of law, the possessor of land has the right to exclude other persons from it; and from this it follows that he has the right to take what is on the land, even though it be wild, and to exclude others from the opportunity of taking it. But it also follows that when the wild animals are off his land

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his exclusive right ceases. Thus it is that the owner of the land has a special right, by reason of his right of ownership, of taking the wild animals on his land-the right ratione soli. Contrasting this right with the right of property asserted in the seals, Sir Charles Russell continued:

"Now let us look at the question again by the light of an application of my learned friend's doctrine of property in seals. What does it import? What are the consequences of it! It leads us to those absurd consequences from which my learned friends most naturally seek to escape, but from which they can not escape, namely, that if there is property on the islands there is property a thousand miles away from the islands. And one might invent, or one might imagine, a colloquy between a representative of the lessees of the Pribilof Islands and a pelagic sealer off Cape Flattery. The pelagic sealer is about to shoot a seal which he sees there, and the agent of the lessee says: No, you must not; that belongs to me. Well, when did you see it last? Well, I do not know that I ever saw it before.' 'How do you know it is yours?' 'Well, I can not be quite certain that it is mine. I have no mark upon it, but I think it comes from the Pribilof Islands.' You say the property is yours. Do you say that that particular seal is yours? Well, I can not quite say that; it is not necessary that I should say that; but it belongs to a lot of seals; we call them a herd-though I can not quite undertake to say that particular seal is mine I am pretty sure it is one of a lot of seals that probably came from the Pribilof Islands. You must not shoot him, because when he goes back, as I expect he will (I am not sure), by the imperious instincts of his nature, to the Pribilof Islands I intend to knock him on the head.' I need not say the seal, not interested in this discussion, has meanwhile disappeared, and his life is so far prolonged."

The Nature of the
Seal.

There was but one instance given in the Case of the United States, said Sir Charles Russell, in which an attempt was made to tame a young seal-the case of a pup called "Jimmie.” His mother gave birth to him away from the rookeries while on her way from the killing grounds to the water, and he was taken in charge by an employee of the sealing company with a view to save his life and make a pet of him. As stated by this witness, the pup could not be made to eat, and generally bit those who attempted to feed him. Spoons and nursing bottles were tried in vain; and after two weeks or more of futile efforts a flexible tube was put down his throat, and by means of a syringe a pint of fresh cow's milk was injected into his stomach. After the operation he showed "in the most