44 ORAL ATlGiniENT OF HON. EDWARD J. PHELPS. 



That IkS all we have to do. Pursue its analysis for yourselves ; christen 

 it for yourselves if it is necessary. It is a property interest — a property 

 right — extending', as far as the beneficial character of it extends, receiv- 

 iug- all the protection that it is necessary to receive. I might decline this 

 discussion altogether, but I shall not. I am going to pursue it to some 

 extent lest it be said that we are asserting a right that we are afraid 

 to attempt to analyse. But I premise what I have to say upon that 

 point by the respectful assertion that I am called upon to do no such 

 thing; that the princii)les of law we contend for are established, are 

 recognized by usage all over the world, under which every property of 

 this s©rt in the world is held to day, and by the assent of all mankind 

 has been acknowledged and protected everywhere. That is the ground 

 upon which we stand; let those who assail it show that it is a part of 

 the just freedom of the sea that they may come and exterminate this 

 property. 



Now, Sir, let us go a little further. Suppose we consider what this 

 claim of property does exactly stand upon"^ There are some prelimi- 

 nary remarks that should be made about that, as it seems to me. The 

 first is, that the rules of property extend as completely to wild animals 

 under proper circumstances — i)evhaps I should say valuable wild ani- 

 mals not noxious — as they do to any other property in the world. 

 Where it is said that this kind of property is qualified, it is meant that 

 it is qualified only because it is liable to cease without the act of the 

 owner. No right of property except in wild animals ceases without the 

 act of the owner. Its forfeiture to the public law of the country is no 

 exception, because that depends on the owner's act. The property in 

 wild animals of this sort may cease by the animals reganiing-their wild 

 state and forsaking their proprietor. That is what is meant, and all 

 that is meant, when it is said that it is "qualified." 



Then a right of property, my learned friend the Attorney General 

 says, must always have its root in municipal law. That is true, in 

 respect to individual property. No man can possibly have any property 

 right or interest of any description that is not given to him by the 

 municipal law under which he lives, or under which the property that 

 he claims is controlled. If he has got it rightly, it is derived under 

 some municipal law — the law of his doniicile, the law of the situs, the 

 law of the place of contract. But how is it with a Government ? The 

 Government creates the municipal law; it is not the subject of it, except 

 to the limited extent in which it may deal, as an individual might, when 

 he buys a particular piece of property; but as a general proposition 

 Government does not derive its title from nninicipal law — it derives its 

 title from assertion and possession, unless that assertion and posses- 

 sion controverts the rights of some other nation. A Government takes 

 possession ; it asserts that it has a title. That makes a title, unless, in 

 making that assertion, and taking that possession, it infringes the right 

 of another nation. It is upon that, the whole theory of discovery and 

 occupation depends. I may not go into some sea and find an undiscov- 

 ered island, and take possession of it as my property. My Government 

 can, and all the land in the world is held by the governments that 

 possess and control it under just that title — by occupation or discovery, 

 or by succession to those who did occupy and discover. It is assertion 

 and possession, I repeat, that gives a title to a Government, unless it 

 transgresses the rights of others who alone can complain. How came 

 we by the Pribilof islands'? IJussia discovered them, occupied them, 

 kept them, and asserted the title to which they had no other claim but 



