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



Kow, Mr. President, I cannot think that this helps us very much, nor, 

 so far as this particular case is concerned, do I see that it helps us at 

 all. Suppose there are three persons or nations who are interested — to 

 take the concrete case of pelagic sealing — three nations, the American, 

 the Russian and the Canadian people: suppose farther that the home 

 of the seals is still undiscovered; that they are only known to frequent 

 these seas at i^articular times of the year; that these three nations each 

 pursue the seals in the sea: but that none of them pursue them eco- 

 nomically — all aiming at destroying the stock: are all to be restricted 

 according to my friend, or which is to be restricted? If all are on an 

 equality as to wastefulness, or if all are on an equality as to economic 

 use, whose is the right to take? or have none the right to take, or are 

 all excluded? And how are you to determine it, if all three are equally 

 economic: — whose is the right, or whose is the property? The truth is 

 that these vague propositions afford no guide and no help at all to the 

 elucidation of the particular matter in question. It looks to me, indeed, 

 as if this proposition, that property in animals useful to mankind, 

 exhaustible in their nature, is to vest in him who can best utilize such 

 animals and preserve the stock, was a proposition invented to meet the 

 case of fur-seals, invented for the occasion, and ingenioasly invented 

 for the purpose of evading the difficulties which stared my friend in the 

 face. 1 say, therefore, Mr. President, as regards the whole of this mat- 

 ter, and the Avhole of the argument addressed to these propositions, that 

 while they have a certain academic interest thej^have only an academic 

 interest; they do not assist this Tribunal in determining the question 

 before us; and, pushed to its legitimate result, even if there be a prin- 

 ciple of ethics or economics in it at all, it would result in the affirmation 

 of a principle that property should be attributed to him, or to the nation, 

 that can best turn it to account: a proposition of a very wide character, 

 which would lead to the transfer of a good deal of the world's posses- 

 sions from the hands that now possess them to others, but for which no 

 warrant is to be found in any system of jurisprudence that I am aware 

 of, and which interimtional law has never even made any approach to 

 recognizing. Let me say in this connection — 1 shall have to say some- 

 thing about it a little later — that while my friend is quite logical if his 

 original position is correct, namely, that the law of nature and the law 

 of morals are the same as international law — while my friend is quite 

 logical if that first proposition is made out, the superstructure that he 

 has built on that first projDosition falls to the ground if that original 

 position is not made out. I say that original position is not made out. 

 I have alieady dealt with this before in general language — that the 

 moral law and the natural law are not international law, but only so 

 much of them as have been taken up into international law, and adopted 

 with the consent of nations. And I would put this practical test. 

 1008 Can mj^ friends, or can the erudition of any meuiber of this Tri- 

 bunal refer to any case of international controversy that has ever 

 been decided by a direct appeal either to the law of nature or to the 

 moral law? I say there is none. The moral law, and the law of nature, 

 of course, have been great factors in the formation of international law, 

 but they are not international law; and I say there is no controversy — 

 of course I speak subject to correction — which can be referred to uj)on 

 the question of right between nations, which has ever been determined 

 by direct reference either to the moral law or to the law of nature. 



Senator Morgan. — You remember. Sir Charles, that in the Treaty 

 between Great Britain and the United States, the Treaty of Washington 

 in 1871, the two Governments failed to agree as to what the international 



