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



Sir RicnARD Webster. — Ko. 



Sir Charles Russell. — That is another authority, to whom I shall 

 refer later. 



Mr. Justice Harlan. — There is an article there signed, ''Robert 

 Rayner ". 



Sir Charles Russell. — Well, that shows that the members of the 

 Tribunal have been very industrious in reading this literature. I have 

 not noticed it myself but mj^ learned friend, who is very accurate, tells 

 me that it is not the same. However, having called attention to this 

 article, and adopting as my own argument some of the passages in it, 

 I will place it at the disposition of any member of the Tribunal who 

 desires to see it, and who will judge it upon its intrinsic merits. 



Mr. Phelps. — Can you give us a copy? I have never seen it. 



Sir Charles Russell. — Well, it would have been courteous of the 

 author to have sent you one, certainly. 



General Foster. — Is it cited in your case? 



Sir Charles Russell. — It is remarkable that none of your friends 

 have called attention to it. 



Mr. Phelps. — I heard a man had written something; that is aU. 



Sir Richard Webster. — I may say that, at page 345, it is a reply 

 to Mr. Felton. 



Sir Charles Russell. — At page 12 of this article, the author puts 

 Mr. Phelps' argument, in the following way: — these seals, making 

 767 their home on American soil, belong to the proprietors and are a 

 part of their property, and do not lose this quality by passing 

 from one part of the territory to another in a regular and periodical 

 migration necessary to their life, even though in making it they pass 

 temporarily through water that is more than 3 miles from land. The 

 simple question presented is whether the United States Government 

 has a right to protect its property and the business of its people from 

 this wanton and barbarous destrnctiou by foreigners, which it has made 

 criminal by act of Congress; or whether the fact that it takes place 

 upon waters that are claimed to be part of the open sea affords an 

 immunity to the parties engaged in it, which the Government is bound 

 to respect. It cannot be doubted that that is fairly stating the pith of 

 my learned friend's contention. 



The writer proceeds to answer it thus : 



Mr. Phelps thinks that to the "ordinary mind" this question would not be a diffi- 

 cult one. 



Probably not because the falseness of premises upon which the alternative is based 

 would escape detection by such a mind, — but any mind with a grain of logic sees at 

 once that Mr. Phelps is merely begging the real question; the primary one which 

 must be settled in his favour before his proposition can be considered and that is : 

 Ca7i ive or any nation have any property whatever in seals or any wild animals found 

 heyond the national territorial jurisdiction f Of course Mr. Phelps, a past-master in law, 

 knows that in law there is no property right in wild animals whether fish, mammal, 

 or bird outside of territorial limits; that anybody and everybody is free to appro- 

 priate or kill them so long as in doing this no right of territory is violated. To ena- 

 ble us to exercise lawfullj- any right of proprietorship in wild animals like seals we 

 must confine them within onr territorial 'jurisdiction. To allow them to leave our 

 territory, to escape into the "high seas", is to deliver them up to the tender mercies 

 of maniiind in general, and to pretend to prcA^ent non-Americans from doing what 

 they like with seals found in the "high seas" is to fly in the face of all international 

 law. and consequently to make ourselves ridiculous. 



He then proceeds to argue in the remaining passages closely, with 

 reference to authority, the legal proposition which is there indicated. 

 Nor is this the only gentleman. Dr. Stephen Berrien Stanton of the 

 New York Bar, has written a book, which is published in New York 

 by Albert B. King, Publisher. 



