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



herein I agree thoroughly with my learned friend Mr. Carter (one of 

 my few points of agreement 1 am afraid) that once yon establish the 

 right of property the law will suppose you are in possession, even though 

 you have lost the physical control and dominion over the thing. 



You do not lose your property if you once have it, if it escapes out 



of your hand ; you do not lose your property in your sheep or horse, 



or in any other animal as to which you have an absolute right 



971 of property, because it may have strayed miles, even liundreds 

 of miles, away; and therefore if there is property in these seals 



the ijroperty attaches wherever they are. 



Senator Morgan. — A case of constructive possession. 



Sir Charles Kussell. — Quite so. That is a convenient expression. 



But that is only where you have tlie property in the same sense, to use 

 Mr. Carter's illnstratiou, as you have property in a ship, AVhat conse- 

 quences does this lead us to"? It leads us to those absurd consequences 

 from which my learned friends most naturally seek to escape, but from 

 which they cannot escape, namely, that if there is property on the 

 Islands there is jjroperty a tliousand miles away from the islands. And 

 one might invent, or one might imag'ine, a colloquy between a repre- 

 sentative of the lessees of Pribilof Islands and a pelagic sealer off Cape 

 Flattery. The pelagic sealer is about to shoot a seal which he sees 

 there, and the agent of the lessee says: "No you must not, that belongs 

 to me". "Well, when did you see it last?" "Well 1 do not know that 

 I ever saw it before." "How do you know it is yonrs?" "Well I can- 

 not be quite certain that it is mine. 1 have no nmrk upon it, but 1 think 

 it comes from the Pribilof Islands". "You say the property is yours. 

 Do you say that that particular seal is yours!" "Well I cannot quite 

 say that; it is not necessary that I should say that; but it belongs to a 

 lot of seals; we call them a herd, — though 1 cannot quite undertake to 

 say that i^articnlar seal is mine I am pretty sure it is one of a lot of 

 seals that probably came from the Pribilof Islands. You must not 

 shoot him, because when he goes back, as I expect he will (I am not 

 sure) by the imperious instincts of his nature, to the Pribilof Islands I 

 intend to knock him on the head". I need not say the seal, not inter- 

 ested in this discussion, has meanwhile disappeared, and his life is so 

 far prolonged. But does it not present the ab.surdity of the argument 

 of property in the individual seal, so that as one may say, <;a saute 

 aux yeux. 



Need I dwell upon, the farther consequences, namely, that in defence 

 of this property in the individual seals, or in the seal herd, it is claimed 

 by the United States that they may search and seize ships that they 

 believe to be engaged in pelagic sealing, and, if they make good the 

 accusation, confiscate such shii)s"? 



Now let me just see whether the facts which I have so far mentioned 

 as characteristic of this animal are not facts as to which there is no 

 doubt or dispute. Is there any real dispute that the animal is a sea 

 animal, a free swimming animal? "Is there any dispute that it spends 

 at least half of its time in the open sea? 1 think not. My learned 

 friend, Mr. Coudert, went the length of saying that it spent eight 

 months of the year on the islands. Now that, u])on the examination of 

 the figures, will be found to be quite incorrect. It will be found that a 

 much nearer approximation is from three to five months in the year, 

 and the way in which the longer i^eriod has been arrived at has been 

 by taking the date of the earliest arrival and the latest departure; but 

 if yon take the mean it will be found somewhere between four 



972 and five months, taking each class of seal; the argument that 

 we have put forward on this point, seems to be warranted by the 



