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



pursued for a century, and the island on whicli the seals breed to be 

 undiscovered: can it be doubted that,' in that state of things, there is 

 a right to hill the seals in the manner called pelagic hunting'? Can it 

 be doubted"? Then, if, at the end of a century, the island on which 

 those seals breed, is discovered, does that which for a century was a 

 right which all the world might exercise, cease to be a right, and does 

 the mere fact that you have discovered the breeding place on those 

 islands change that which was exercised by mankind in common as 

 a right into a moral crime, an indefensible wi'ong, and all the rest of it? 



Now, I say this is no ideal case; this is the actual case you are dis- 

 cussing, because it stands confessed that, till the year 1786, the Pribilof 

 Islands were unknown, and it was in that year, for the first time, that 

 it was discovered that they were a breeding place for seals. Tliat is 

 the statement of my learned friend, and the correct statement, so far as 

 I know, historically. Up to that time all who had an interest to engage 

 in- this pursuit, namely the aboriginal inhabitants along the coasts, 

 engaged in it; and is it to be said, can it be said, with any show of 

 reason or justice, or with any warrant of law, that straight away the 

 discovery of the breeding place of the seals deprived those who previ- 

 ously exerc sed the rights of pelagic sealing, or the industry of pelagic 

 sealing, of those rights? 



Now, I i)roceed with the main line of the argument at the point where 

 I left off, and I had been stating (I had not got very far in stating it) 

 when my learned friend, Mr. Carter, interrupted me (I am not making 

 any complaint of the interruption at all) : he did not recognize the 

 proposition which I was stating in order to combat it as one which he 

 had advanced. I had not got, at the moment of his interposition, to 

 the full statement of it; but I will cite it now, and will endeavour to 

 show that I am justified in stating it as a proposition advanced by my 

 learned friend and which I have to meet. I will state the proposition 

 in two ways, because I find it stated with some variations. One 

 1003 is that only the usufruct of property is recognized by law^; and 

 that, with the exception of a certain class of living creatures 

 said to be inexhaustible, you can only take the superfluous males, and 

 that you can exercise your right of usufruct only in such a way as not 

 to interfere with the stock. And, in another place the proposition is 

 stated in very much the same way, but in slightly diflerent language; — 

 that property in animals useful to mankind, exhaustible in their nature, 

 is by law given to him who can best utilize such animals for the benefit 

 of mankind by taking the increase and preserving the stock. I do not 

 think that my learned friend will quarrel with that as being a pretty 

 accurate statement of the propositions which he advanced? 



Mr. Carter. — The last is accurate; the first is ambiguous. 



Sir Charles Eussell. — I do not think it is ambiguous; but, how- 

 ever, he accepts the last as accurate. 



Now, I should like to refer to the way this is illustrated in the argu- 

 ment of my learned friend, because I think I shall satisfy the Tribunal 

 that he has here got out of the domain of law and into the domain of 

 ethics, — that he has been relying upon the opinions of writers who 

 have either been dealing with what the law ought to be, and the ethical 

 principles which ought to permeate law and upon which it ought to be 

 based; or he has got to metaphysical writers who have been struggling 

 to find a metaphysical reason to account for the law, and who are not 

 content to accept the law as it is. 



Before I read these passages of my learned friend, I should like to 

 make one preliminary observation. You observe the point of this 



