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



Sir Charles Russell. — I quite agree, sir; but they have mixed 

 tlieiu up. They have uot only argued them at the same time, but inter- 

 mingled them. This was put distinctly forward as a consideiation in 

 supi)ort of the argument on property. 1 want to know, is it to be relied 

 upon or uot. It must be obvious — as you. Sir, with your acuteness, 

 have already perceived — that it can have no bearing upon the question 

 of property! If we have a right to do a thing, the fact that we do it 

 in a wastetul way cannot change a riglit into a wrong. The fact that 

 we do it in a wasteful way cannot give them a right which they other- 

 wise would not have. 



I dwell upon this, however, for this reason, that I waut to show you, to 

 satisfy you, that while this question of wastefulness of pelagic sealing is 

 most appropriate to be considered in relation to the question of regu- 

 lations, it must be discarded from the consideration of tlie question of 

 property, and ought not to have been introduced into the consideration 

 of the question of property, where it has no legitimate place, where it 

 could only be used for the illegitimate purpose, not of aiding the judg- 

 ment of the Tribunal, but of prejudicing it and distracting it. 



Mr. Justice Harlan. — Does it not bear on the question of the right 

 to protect the industry at the island? 



Sir Charles Eussell. — I am coming to the question of industry 

 presently. I was dealing with the question of property either in the 

 industry or in the seals. I would ask that question again, as Judge 

 Harlan has been good enough to ])ut it. Is it alleged that the right of 

 protection of their industry depends upon whether we kill wastefully 

 or not? I should like an answer to that. Is it to be alleged that the 

 right to protection of the industry is strengthened or depends in the 

 slightest degree upon the question whether we kill wastefully or not? 



Mr. Justice Harlan. — If the killing at sea is calculated to destroy 

 the industry, it would seem to have some bearing on the question of 

 protection, if that right to protect exists. 



Sir Charles Russell. — " If". " There is much virtue in an ' if' ". 



Mr. Justice Harlan. — I am making a distinction between a mere 

 question of property in the seals or in the herd, and the question of 

 the right to i)rotect the industry on the islands. 



Sir Charles Russell. — You mean the proposition whicb my learned 



friend, Mr. Phelps, advances in his argument, that even if there is no 



property in th.e seal, and no property in the herd, yet there may be a 



right to protect the industry. That I will come to in a moment. 



998 Mr. Justice Harlan. — Mr. Carter covered that ground, the 



question of i)rotection, before he got to regulations. 



Sir Charles Russell. — Yes. 



Mr. Justice Harlan. — You are saying that on the question of prop- 

 erty simply, the discussion as to the wasteful character of pelagic seal- 

 ing was irrelevant. I simply inquired whether, independently of the 

 question of regulations, and independently of the (juestion of property, 

 the wastefulness of pelagic sealing would not bear on the question of 

 the protection of the industry at the islands. 



Sir Charles Russell. — Oh, independent of any question of property ? 



Mr. Justice Harlan. — In the seals. 



Sir Charles Russell. — That pelagic sealing may injure the industry 

 on the islands, if it be so called, nobody doubts. That is not the ques- 

 tion we are discussing; but I say that in respect to any right of pro- 

 tection of an industry, or in respect to any light of protection of the 

 seal or of the herd, the question of the wastefulness of the means has 

 nothing whatever to do with it, and cannot give them a right which they 

 have not got without it, or put us in the wrong if we are in the right. 



