ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 39 



of any claim to the property embraced in those extended limits over 

 wliich dominion and sovereijiiity were so claimed. There was undoubt- 

 edly in connexion with those assertions, and consequent npon them, a 

 claim to exclude others from the given area — a claim to exclusive right 

 to deal with whatever was to be found in that given area. But 

 that is a very different thing from an assertion of property in the par- 

 ticular things, the particular animals which may inhabit that area; and 

 I say, subject to be contradicted, but without lear of contradiction, 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, it follows from what I have already said, that 

 this is the first time that an attempt has been made to dilferentiate one 

 particular animal from all the other animals that dwell during a large 

 part of their existence in the ocean. 



I do not know that my learned friends would even say they were 

 called upon to differentiate the case of the seal from that of other 

 animals. If they made the attempt so to differentiate it, I think they 

 would find it difficult; but to examine that field of enquiry at this 

 moment would be to take me from the line of argument along which I 

 am advancing. 



Now, if I am well founded in this observation, it is a startling mat- 

 ter; and one is not surprised, therefore, to note some difiiculty in 

 finding any authoiity, ancient or modern, in support of this novel claim. 



It is creditable indeed to the writers and publicists of America to-day 

 that I do not know one among them, and I have made some enquiry in 

 order to inform myself upon the subject, of reputation and authority 

 who has been found to justify the claim which the United States put 

 forward of property in the seal or in the seal-herd. We find a good 

 many who take the opposite view. My learned friend Mr. Phelps 

 indeed, is the patentee of one idea, (if an idea, by the 

 way, can be patented), upon which a great part of the lifted*!" tls 

 present argument of the United States is based — I who have opposed 

 766 mean that idea set forth in his letter, to which I *'" *''^™- 



shall hereafter pay some attention, written in September, 1888. 

 My learned friend has entered the arena of public controversy in this 

 matter; and, in Harper's Magazine for April 1891, he has published an 

 article, very ingenious and able as you would expect, in which he 

 ami^lified the idea first propounded in this letter of September, 1888. 

 The article is, in fact, the argument which appears under my learned 

 friend's signature in the printed documents before the Tribunal. But 

 he was very speedily answered, and I have got here the answer written 

 by a gentleman whose name was previously unknown to me, — Mr. 

 Eobert Eayner. 



Mr. Phelps. — He was unknown to us equally. 



Sir Charles Kussell. — Well, I shall have a word to say about 

 that presently. It was published at Salem, Massachusetts. We shall 

 be able to give you a bttle later, I think, some account of who this 

 gentleman is; but I am justified in referring to him for two reasons; 

 first of all, because Her Majesty's Ambassador at Washington, Sir 

 Julian Pauncefote, in sending it describes the writer as an eminent 

 jurist, and Sir Julian Pauncefote is not a man who speaks in a hap- 

 hazard way; but secondly, I will refer to this gentleman apart wholly 

 from any additional weight to be derived from what his position or 

 what his reputation may be, for the intrinsic merits of his answer: it is 

 well worthy of consideration. 



Mr. Justice Harlan. — Is that the same article that appears in 

 volume 111 of the British Case? 



