ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 225 



and as is the case with many Islands in the Gulf of St. Lawrance, and 



as is probably the case with many Islands off the coast of America, 



that the dominium utile was not in the Government but only the 



989 "eminent domain", — that the dominium utile \Yi\s in the mau 

 who lived on the Island, — let us see what would be the result of 



this. The argument for the United States must go the length of say- 

 ing that the owner of those Islands could assert, against all the world, 

 property in the individual seals frequenting those Islands and might 

 assert the rigut to maintain that claim of property wherever those 

 seals were to be found. 



Again let me put a case which further illustrates what I conceive to 

 be the untenable character of the position. Assume that the Islands 

 are separately owned by two different owners; or separately leased, one 

 to one lessee and one to another lessee; would it be possible to assert, 

 even tw/erse, the right of property in individual seals found in Behriug 

 Sea, or anywhere out of Behriug Sea, as belonging to one or other of 

 the lessees of those Islands? If it be difficult, inter se, to regulate the 

 rights and claims of property, it is still more difficult as regards third 

 persons, 



iSTow, all these considerations, each of them strong in itself, collect- 

 ively, I submit, are very difficult to meet, and do something more than 

 suggest the impossibility, as I submit, of affirming property in the seals 

 on this initial difficulty of identification. 



But those are not the only difficulties. Is there any one of the Tribu- 

 nal who has any doubt that, taking the facts which are not in dispute 

 as regards this animal, this amphibious animal, I have described an ani- 

 mal which the law has classed, has designated, an animal /ercp naturce. 

 Is there any one who doubts it? There are undoubtedly three classes 

 in this connection: The class of wild animals, the class of Ti^eaiie-edtame. 

 domestic animals, the class of animals which, while belong- nessot the seal con- 

 ing to the class of wild animals, have been taken out of *"'"'^'^- 

 that class by reclamation, so that they have ceased to be wild: have 

 become reclaimed, domesticated, and therefore are removed in law out 

 of the category of wild animals. iSTow is it to be gravely said that seals 

 are in the category of tame animals! What is the index to their being 

 tame? How have the United States even professed to tame tliem? 

 Have they alleged, can they truly allege, anything more than that which 

 I have conceded to them from the beginning, that by reason of the inca- 

 pacity and mildness of this animal to defend himself on land, he presents 

 an easier task to the man who goes to knock him on the head with a 

 club; and thereby gives to the United States or their lessees greater 

 facilities for killing them? but except knocking them on the head, and 

 preventing anybody else knocking them on the head, what do these gen- 

 tlemen, or the representatives of this Government, do to take even the 

 simi^lest step towards acquiring property in the animal on the ground 

 of reclamation, or per industriam. 



One further remark before I come, as I suppose I must come, to the 



propositions, the vague and general propositions, my friends have 



advanced. It has been a matter of surprise to me that my learned 



friends have not addressed themselves to the consideration of the very 



first step which is to be taken before there can be an assertion of 



990 property in any wild animal: that step is possession. You must 

 first take the animal. They have on the islands tens of thousands, 



according to Mr. Elliott, millions, of seals. They drive large numbers of 

 them under circumstances of great cruelty, if Mr. Elliott's account be 

 true, for the purpose of selecting, knocking on the head, taking pos- 



B S, PT XIII 15 



