ORAL ARGUMENT OF SIR CHARLES RUSRELL, Q, 0. M. P. 235 



rights as to wild animals that iiiigbt be upon the estate, the rig^hts would 

 be precisely the same as those possessed by the previous owner. — The 

 right ratione soli to kill the Mild animals when on his land, the cesser 

 of that right when oft' his land, and the right of any persons who 

 might then capture them to take them according to the general law. 

 Therefore, this right of the Crown does not in any sense touch the 

 question which we are engaged in discussing. 



Senator Morgan. — It was not the right of eminent domain that I 

 had in my mind, but it was the power of the sovereign Government of 

 every nation to control any proj^erty within its territorial limits if it is 

 re.s nuUius. 



Sir Charles Eussell. — That is undoubtedly the power of the State 

 within its own territory — it can pass any laws it pleases. That is 

 undoubted. That is a proposition of constitutional law which cannot 

 be argued. — It has, undoubtedly, a perfect right to make any laws it 

 pleases within the limits of its territorial jurisdiction, in relation to the 

 property within that jurisdiction. 



Senator Morgan. — And can therefore assume ownersMp or pro- 

 prietor- shii) over property that is res nuUius. 



Sir Charles Eussell. — Certainly, if it so chooses, and I think I am 

 right in saying that by the law of, at least, one country, the law of 

 Eussia, there is no such thing as res nullius: for that which is not 

 appropriated to private ownership is by the law of Eussia regarded as 

 in the ownership of the Crown. 



Senator Morgan. — I thought it was the law of Great Britain as well, 

 but I am mistaken in that. 



Sir Charles Eussell. — Yes, I think so. Sir. I think I have stated 

 it correctly. I do not wish to recur to my argument which related to 

 the conditions necessary to constitute property in wild aidmals, but I 

 wish to emphasize a point which I am afraid I did not emphasize suffi- 

 ciently — that there is no such thing as absolute property in wild animals. 

 Without recurring to the condititms which affect the acquirement of 

 property in wild animals I wish to emphasize this point, that even in 

 the case of animals that are reclaimed, there is no absolute property: 

 the property that is created by reclamation ceases if the animal resumes 

 its wild habits and escapes at large, the animus revertendi disappears. 

 So that even in the case of reclaimed animals there is no such thing as 

 absolute or perfect property. 



When I was upon the point that the manner in which seals 

 1002 were killed by pelagic sealers could not be the foundation of, or 

 even a buttress for the right of those on the Islands, I failed to 

 notice one point. If that is admitted, then, of course, as I said yester- 

 day, all this discussion, so far as it relates to proi^erty — but not to Eeg- 

 ulations, for I agree it then becomes relevant^ — may be disregarded as 

 a mere matter of prejudice; but I failed to point out what must follow 

 from that. 



If it is admitted to be irrelevant, as I contend it must be admitted on 

 the question of property, then it miist necessarily follow that the United 

 States will be driven to say that they are asserting upon the sea a riglit 

 superior to ours, even if we kill by pelagic sealing only barren females 

 or old, or superfluous males; even if we can kill non-wastefully, 

 economically and discriminately. That follows inevitably. 



Now, I also desire to give in this connection an illustration of the 

 position as to projjcrty and as to the right to pelagic sealing by, not an 

 ideal case, but by the case as we know it exists. I will i)ut it, in the 

 first instance, as if it were an ideal case. Assume pelagic sealing to be 



