25G ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q» C. M. P. 



Fourth. That the extent of the dominiou which is allowed by the institution of 

 property, either to nations or to individuals, is always limited by the social duties 

 which invariably acc()nii)any it. 



1. It is the use only wliicli is given. 



2. They must be so used as to carry out the purpose of the original gift for the 

 beuefit of all mankind. What is not needed for the use of the nation or individual 

 owning the gift must be oHered on reasonable terms to the rest of mankind. 



3. Nothing must be wantonly or needlessly destroyed. 



Fii'Tii. Wherever a useful thing is not furnished by nature in quantities sufficient 

 to satisfy the desires of all, and will be exhausted unless it may be preserved by 

 making it the subject of property, it must be made the subject of property. 



I really do, with the greatest deference to my friend, and not, I hope, 

 using more vehemence of language, or pointedness of language than the 

 occasion requires, say that this is an invitation to us very far afield from 

 the question that you have to decide. You are not here framing laws; 

 you are not here judgeg of ethics or of morals; you are here to declare 

 what the law is; and you are not even to trouble to enquire into the 

 foundation upon which the law rests, but you are to declare it as you 

 believe it to be. 



Now I have to supplement these authorities by certain authorities 

 referred to in our Argument and Counter-Case. In the 



-Additional an- British CountcrCase, page 82, a number of authorities 

 Gi^eatBriuun. ^ are citcd, with which I do not intend to trouble you; but 

 there is, on page 83, one authority I should like to cite 

 because it is an American authority — the opinion of a writer of dis- 

 tinction — 1 mean Chancellor Kent. On page 83 there will be seen a 

 citation from the Boston edition, the 9th edition of his Commentaries, 

 page 1858, vol. II, p. 432 : 



Animals /er«p naturce, so long as they are reclaimed by the art and power of man, 

 are also the subject of a qualified property; but when they are abandoned, or escape, 

 and return to their natural liberty and ferocity, without the animus refertendi, the 

 liroperty in them ceases. While this qnalitied property continues, it is as much 

 under protection of law as any other property, and every invasion of it is redressed 

 in the same manner. 



The difficulty in ascertaining with precision the application of the law arises 

 1027 from the want of some certain determinate standard or rule, by which to deter- 

 mine when an animal is /era; vel domitce naturce. 



If an animal belongs to the class of tame animals, as, for instance, to the class of 

 horses, sheep, or cattle, he is then clearly a subject of absolute property; but if he 

 belongs to the class of animals which are wild hj nature, and owe all their tempo- 

 rary docility to ihe dicipliue of man, such as deer, fish, and several kinds of fowl, 

 then the animal is the subject of qualified property, and which continues so long 

 only as the tameness and dominion remain. 



Tbeu at the bottom of that page in our Counter-Case, the argument 

 which is at the basis of our case on property is suggested, thus : 



It would seem useless to multiply authorities, as there is no suggestion t'lrough- 

 out the United States Case that, even in their own law, the rule is not laid down by 

 Kent. 



Then there follows a statement which I think is not immaterial, 

 especially in view of some observations made by Senator Morgan, but 

 which I merely intend to refer to and not to dwell upon: it is pointed 

 out that the effect of the law of the United States, beginning with the 

 law of 3rd March 1809, by which the Islands of St. Paul and St. George 

 were declared to be a special reservation for Government, is not an 

 affirmation of any property in the fur-seals; and it is further pointed 

 out, on page 84, that when the lessees assumed that position from the 

 United States, all that was given to them by their lease was "the 

 exclusive right to engage in the business of taking fur-seals on the 

 Islands of St. Paul and St. George in the territory of Alaska." I do 

 not, however, iu this connection pursue this subject. 



