ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 241 



law was in its application to the alleged fitting out of those cruisers, 

 and so forth. That they agreed upon three distinct propositions or rules 

 of right to operate between the two Governments in respect of their 

 controversy. They could not agree on them as propositions of interna- 

 tional law, but they were so obviously just and proi)er that they made 

 an agreement in the same Treaty that hereafter those three propositions 

 should stand for international law between the two Governments. 



Sir Charles Russell. — I have no doubt they showed their good 

 sense. 



Senator Morgan. — I have no doubt they did. 



Sir Charles Russell. — But what were they doing? 



Senator Morgan. — Making international law. 



Sir Charles Russell. — With great deference, supplying the absence 

 of international law. 



Senator Morgan. — That is what I mean. 



Sir Charles Russell. — Doing by Convention that which interna- 

 tional law did not do. 



Senator Morgan. — That is what I mean. 



Sir Charles Russell. — And in truth that is the subject which must 

 engage your attention a little later when I come to another branch of 

 this case, that the fact is, there being no international law upon this 

 question, the place of international law is determined by Convention, 

 which so far as this Tribunal is concerned gets another name — " Regu- 

 lations". 



But now I turn from these vague propositions (as I must respectfully 

 call them, while I am sure I do not desire otherwise than to express my 

 admiration for the learning and ability of my friend), with a certain 

 sense of relief to see whether, when we come to definite authority, my 

 friend is able to produce anything definite in support of his views; and 

 when I come to these authorities what do I find? that of the authorities 

 cited, all of them support the argument of Great Britain, some of them 

 indeed are referred to in it; and to the examination of those authorities 

 I now invite the attention of this Tribunal. 



1009 EXAMINATION OF AUTHORITIES CITED BY THE UNITED STATES. 



The authorities cited in the Argument of the United States are to 

 be found at page 108. They begin with a citation from " Studies in 

 the Roman law " by Lord Mackenzie. 



Deer in a forest, rabbits in a warren, fish in a pond, or other wild animals in the 

 keeping or possession of the first hohler cannot be appropriated by another unless 

 they regain their liberty, in Avhich case they are free to be again acquired by occu- 

 pancy. Tame or domesticated creatures, such as horses, sheep, poultry, and the like, 

 remain the property of their owners, though strayed or not contineil. The same rule 

 prevails in regard to such wild animals already appropriated as are in the habit of 

 retiirniug to their owners, such as pigeons, hawks in jjursuit of game, or bees 

 swarming while pursued by their owners. 



All perfectly sound — pigeons for whom a dovecote is provided, who 

 are supplied with food and induced to return not merely to a particular 

 place, but to fly for the shelter of home to a particular place. So 

 hawks, trained by great eftbrt and labour, to fly game and return to 

 the wrist or shoulder of the owner. So bees, naturally wild, but which 

 in a swarm are captured, put into an artificial hive, supplied with food 

 to commence their saving operations, — supplied with mechanical con- 

 trivances to aid them in the construction of their combs — it is of these 

 last you will properly say that there is qualified property in them : that 

 that property is not lost when they temporarily disappear. It is iu 

 B S, PT XIII 16 



