ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 209 



When the birds are young he feeds them, and when they are old he 

 feeds them. They spend a great part of their time on liis land, but 

 they make excursions to adjoining land which is not his, and they 

 return to Ids land because they expect to be fed there. 



Take again rabbits: you have a warren in a sand-hill on your estate, 

 which supplies very little food indeed to the rabbits, but which gives 

 them every facility for constructing their houses or burrows in the sand. 

 They go elsewhere, it may be to anotlier estate of yours, it may be 

 upon your neighbour's estate, in the dead of the night, or early morning, 

 for their food; and then they come back to your warren. They have, 

 by the imperious and unchangeable instincts of their nature, the 

 animus revertendi. 



And with grouse almost the same thing happens. 

 970 So with wild deer. One may multiply the instances. These 



animals all have the animus revertendi: but has any law ever 

 said, though there are cases in which you actually induce them to 

 return by making them homes, and even by giving t]iem food, that 

 your neighbour, wlieu tliey are oft" your land, may not shoot them as wild 

 animals. No: no case has ever said anything of the kind. i!^o case 

 eA'er could say anything of the kind. 



I go a little further. It is stated in this case, — and I am at present 

 engaged, as the Tribunal will see, not in building up an affirmative 

 argument, but in examining and analysing the argument put by the 

 otlier side: taking it to pieces, as I hope successfully — it is said in the 

 case, and was repeated, to my amazement, by Mr. Coudert, if not also by 

 my learned friend, Mr. Carter, that when the seals were on the island 

 they were the complete and absolute i)roperty of the United States or 

 their lessees. 



Thereupon Senator Morgan very astutely put the question : if they 

 are the absolute property of the United States or their lessees when 

 they are .on the islands, when do they cease to be their i)ro])erty, and 

 how do they cease to be their i>roperty, — a very i^roper question 

 indeed. But there is much virtue in an " if." " If" they are their 

 property on the islands, they are their property off" the islands. But 

 my learned friends have utterly failed to grasp — I see no trace of it in 

 the whole of the argument, written or oral, — the distinction between the 

 right to take a thing when it is on your land, from which land you can 

 exclude everybody else, and an absolute right of property in the thing 

 itself. Surely it is a legal conception capable of 'very ready and easy 

 apprehension, recognized by all systems of municipal law, in all civil- 

 ized countries, that on the land you have a right to exclude everybody 

 else: you have a right to treat that somebody else as a trespasser. 

 It follows from that that you have the right to take what is on the 

 land, even though it be wild; and the right to exclude others from 

 the opportunity of taking it. But it follows also, that when the wild 

 animals are oft" your land your 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 lands: the right known 

 as ratione soli. This fundamental principle I find no trace of in the 

 argument written or oral of my learned friend; but it is a principle 

 which it is important and very essential to be borne in mind in this 

 case, 



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 iti It imports this, that if 



they are i)roperty on the Islands they are property everywhere; and 



B S, PT XIII 14 



