ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 257 



N"ow some furtlier authorities are referred to, in the printed Argu- 

 ment of Great Britain; but inasmuch as all the authorities have been 

 discussed by me at length, I do not think it necessary to do more than 

 ask the Tribunal to bear in mind that there is that reference to further 

 authorities at that place, and that there will be found what we submit 

 is an accurate statement of the law, both as to that prevailing in the 

 United States and that prevailing in Great Britain. 



On page 31 of the English Argument you will find this: 



The common law in force both in America and England as to anitiials/era' nninrce 

 is identical. 



This law recognizes no property in animals ferw naturcp until possession. Prop- 

 erty, while the animals are alive, remains only so long as this possession lasts; when 

 this possession is lost the property is lost. The law considers that they are then wild 

 animals at large, and that tlie rights of captnre revert to all alike. 



The owner of land has what is sometimes called a qualified property in wild ani- 

 mals on the land, hut this is no more than the exclusive right to take possession 

 -while they are there, and when they leave the land that exclusive right is gone. 



There is one other American authority to be cited. I have already 

 referred to him, but for another purpose — I mean Professor Angell — (I 



refer now to page 95 of the first volume of the Appendix to the 

 1028 Case of Great Britain). — In his article in the "Forum", he states 



the argument of the United States as plausibly as it can be put. 

 He says : 



It may be argued that, since most of the seals which are taken by the British breed 

 on our soil in the Pribylof Islands, we have an exclusive chTim to them in the sea, 

 or at any rate a right to protect them there from extinction. But some of them 

 breed on Copper Island and Behring Island, both of which belong to Russia. How 

 is it possible to maintain any claim to ownership in seals on the higli seas under any 

 principle of lavs' applicable to wild animals? We can acquire no property rights in 

 animals fenv naturw fi'om their birth on our soil, except for the time that we hold 

 them in our possession. A claim by Canada to the wild ducks hatched in her terri- 

 tory, after the birds have passed her boundary, would seem to be just aa valid as 

 ours to seals in the open sea. 



Then a little lower down he says: 



On the whole, we find no good ground on which we can claim as a right the exclu- 

 sion of foreigners from the open waters of Behring Sea for the purpose of protecting 

 the seals. 



Now I intend to supplement the authorities already referred to by 

 only one or two more. I refer to the case of GiUett v. Mason, which is 

 a United States case, decided in 1810, and reported in the Tth Volume 

 of Johnson's Keports. It is on the question of bees. I cite it merely 

 to shew that the law of the United States, as regards bees, is the same 

 as the law of Great Britain ; and, indeed, that the judgment was based 

 upon the citation, to which reference has already been made, from 

 Blackstone. 



iSTow the head note in that case is this: 



Bees are /ero; naUir(v; and until hived and reclaimed, no property can be acquired 

 in them. Finding a tree on the land of another, containing a swarm of bees, and 

 marking the tree with the initials of the linder's name, is not reclaiming the bees, 

 nor does it vest in tlie finder any exclusive right of property in them; nor can the 

 finder maintain trespass against a person for cutting down the tree and carrying 

 away the bees. 



In giving his judgment the learned Judge cites the opinion of Black- 

 stone (2 Commentaries p. 392), and of Justinian, as the justification 

 for the legal view that he takes as to property in bees. 



Then, again, as regards rabbits, I refer to the case known as Boul- 

 stonh Case, which is in the 5th volume of Coke's Keports, page 512 : 



Between Boulston and Hardy it was adjudged in the Common Pleas that if a man 

 makes coney-boroughs in his own land, which iricrease in so great number that they 



B S, PT XIII 17 



