198 ORAT. ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



seals as a oolleetioii, or group, or herd, depends upon the 

 ertyTn the" "hOT?r' nature and liabits of tlie animal and the physical rela- 

 examiue.i. ^j^^j^ ^f ^^^ United States to that animal. For my own 



part I am entirely unable to draw any distinction between the claim of 

 property in the seals and the claim of jtroperty in the so-called seal 

 herd. I cannot see where there is any legal ground for any such dis- 

 tinction. If there is property in the individual seals, there is property 

 in the herd composed of those individual seals. If there is no property 

 in the individual seals, it passes human comprehension, at least my 

 comprehension, how it can be alleged that there is a property in the 

 herd or collection of individual seals. Because it cannot be that a 

 congregation of items each one of which is, upon the hypothesis, not 

 property, yet, when they make up the whole, which is called a herd, 

 become property. The question, therefore, really is; Is there a prop- 

 erty in the Individ val seals ? Because lam not going to argue (it would 

 be absurd, in my judgment, to argue), that if there is a i^rojjerty in the 

 individual seals, there is not a jiroperty in the herd which is made up 

 of a number of individual seals. I will sjieak of the industry presently. 

 Upon this part of the case the question is: — Has the United States 

 property in the individual seals! 



Xow, I would like the Tribunal to note the signs of distrust with 

 which this argument is advanced upon the part of the United States. 

 I propose to cull some brief passages from the written Argument of my 

 learned friends. At page 104 this passage occurs': 



It may be asked whether the claim made by the United States goes to the extent 

 of assevtiug a legal right of property in rtw// individual seal which may at any time be 

 found in the seas between the Pribilof Islands at the north and the coast of Cali- 

 fornia at the south. And whether they would insist that in the case of any seal 

 captured anywhere within those limits by any person other than a native Indian, 

 and for purposes of scientific curiosity, or to satisfy hunger, a trespass had been 

 committed upon the property of the United States, and an actionmight be maintained 

 in their name in a municipal tribunal to recover damages, or for the recovery of the 

 skin of the animal, if it should anywhere be found. The United -States do not insist 

 upon this extreme point, because it is not necessary to insist upon it. All that is 



needed for their purposes is that their property interest in the liei'ds should be 

 957 so far recognized as to justify a prohibition by them of any destructive pursuit 



of the animal calculated to injure the industry jjrosecutod by them on the 

 islands upon the basis of their property interest. The conception of a properly 

 interest in the herd, as distinct from a particular title to every seal composing the 

 herd, is clear and intelligible; and a recognition of this would enable the United 

 States to adopt any reasonable measures for the protection of such interest. 



Well, Mr. President, it may be my fault — the Tribunal must say — but 

 I confess so far from the conception of a property interest in the herd 

 being clear and intelligible as distinct from a i)articular title to the indi- 

 viduals composing the herd, I utterly and absolutely fail to appreciate 

 it — The sole point is property or no property. How in the name of 

 heavens, if there be no property in the individual seal, the collection of a 

 number of items, each of which is not property, yet go to make up prop- 

 erty in the whole, I cannot realize ; and it is a matter greatly I think to be 

 regretted that either in the written argument, or in the oral argument, 

 more effort was not made to convey this so-called clear intelligible con- 

 ception to minds like those of my learned friends and like mine, which 

 have certainly entirely failed to grasp it. 



Now another passage in the same sense is found in page 133 in the 

 same argument. 



While the United States Government asserts and stands upon the full claim of 

 property in the seals which we have attempted to establish, it is still to be borne in 

 mind that a more qualitied right would yet be sufficient for the actual requirements 

 of the present case. The question here is not what is the right of ownership in an 



