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



United States. If that is so — I do not know really whether it is meant 

 to be so or not — I say there is no such distinction to be made. For Avliat 

 would be the result? You would be called upon to say that if the Pri- 

 bilof Islands were owned by a private owner, and that he was the jjcr- 

 son who was here formulating the complaint of interference with his 

 rights of private x)roperty, his cause being taken up by his Government 

 and presented to this Tribunal, you would be obliged to affirm — if I am 

 right in my argument so far — that he had no property; but that if the 

 United States is the owner of the Islands, and merely leases them to the 

 lessees, a different set of considerations apply, and that that collective 

 idea, that legal entity, the Government of the United States, may have 

 property although the private individual could not. 1 say there is no 

 warrant in law for the attempt to draw the distinction. Governments 

 may own property just as individuals do; but their right to that prop- 

 erty depends upon the same principles and the same considerations of 

 possession and dominion which are vital to the question of property in 

 an individual. If there be any doubt in the minds of the Tribunal upon 

 that point, I will endeavour to elaborate it a little later in my argument. 



That being the position of things, and my learned friend having cited 

 authorities in his written Argument which disprove his case, as I hope 

 to satisfy the Tribunal, and having been obliged to admit that he cannot 

 found any title based upon the municipal law of his own country, or the 

 municipal law of England, or the municipal law of any civilized 

 993 country in the world, what does my learned friend do ? He has — 

 I say it with all deference to him, because he has made the best 

 of a difficult position — he has in the absence of definite authority been 

 obliged to indulge in treacherous generalities; he has been obliged to 

 accei)t the theories of metaphysical writers as to what they think the 

 law ought to be instead of what the law is. He has floated about 

 amongst the clouds, and he has made very eloquent appeals, very elo- 

 quent appeals indeed, to the eternal and immutable piincipies of justice 

 and humanity. I am reminded of an apliorism, attributed to the late 

 Lord Brougham, who is reported to have said on one occasion when he 

 heard an advocate make an eloquent appeal to the immutable principles 

 of nature and of justice, that he felt quite certain that advocate had 

 very little law on his side. 



A similar expression of opinion, I think not without its significance, 

 was also attributed to another distinguished judge. Lord Ellenbrough. 

 On one occasion, an advocate almost as eloquent as my learned friends, 

 Mr. Carter and Mr. Coudert, was making these appeals, and amongst 

 other authorities he referred to the great Book of Nature. 



"What are your authorities'?" said Lord Ellenbrough. "My Lord, 

 the Book of Nature ". "What page, and what edition ? " said the learned 

 Judge. 



The orator was obliged to descend a little rapidly to the dull level of 

 prose. 



Now, what are these propositions of my learned friend; because I 

 suppose I must examine them. We have had a disquisition ujion the 

 institution of property, and as to its foundations. VVe have been told, 

 and I was rather startled at the suggestion, that i)roperty existed ante- 

 rior to human society, and that one of the great objects of the inven- 

 tion of society was the preservation of property. That will be foun-d 

 at page 3U6 of the report. Therein my learned friend, I think, put the 

 cart before the horse. " Subjects of property existed anterior to soci- 

 ety, but there was no x>roperty in the legal sense of that term, until 



