ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 2G5 



merely that right to take them and so acquire the property, and nothing- 

 more, — it may be so. 



The President. — The fact is, we do not, either of us, know the law. 



Sir Charles Eussell. — i^o ; 1 do not trust myself to speak posi- 

 tively about it. 



I am not at all sure, Sir, that it would not be a more correct thing to 

 eay of wild animals that the.y are res communes rather than res nullins. 

 That may possibly be. I merely suggest it because anybody may take 

 them. I should not like to pledge myself to any view about it. 



Senator Morgan. — They are >t«, at any rate. 



Sir Charles Eussell. — They are res, certainly. 



THE APPEAL TO INTERNATIONAL LAW. 



But now, Mr, President, I have yet to deal with another view of this 

 question, what law is to govern this Tribunal in determining- tbis ques- 

 tion. I submit that I have demonstrated that municipal law does not 

 support this claim, but negatives it. I have further submitted that 

 title in things nuist take its root in municipal law, and I have sought 

 to illustrate that by pointing out to you what the case must be if, 

 instead of the Pribilof Islands being the national property of the United 

 States, they were, as they well might be, the private property of an 

 ordinary individual. I gave as an illustration yesterday the Scilly 

 Islands on the southwest coast of England, and many other islands 

 along the coast. Suppose that, in such a case, the private owner of those 

 islands asserts that his right of property in the seals is attacked by 

 pelagic sealing in the adjoining ocean. 



What must be his initial step? He is complaining of an invasion of 

 his right of property in the fur-seals, by a neighbour, by a pelagic sealer 

 from the adjoining coast. He sues him in trespass; he sues him iu 

 trover; he sues him in any form of action he chooses. The first step he 

 must take, the first position he must lay down clearly and distinctly, is 

 that according to the law of the place he has a title to the thing which 

 he claims, and his right to which he says has been invaded. Can there 

 be any difference — is there any ground conceivable for treating the 

 question in a different way, because the United States happen to be the 

 owners of the sovereignty over the Islands and have given to 

 1038 their lessees the right to take these seals on the Islands? Is the 

 question any different because the claimant here is the United 

 States, from what it Avould be if the lessees were the claimants: or if a 

 private person, being the owner of the Islands, was the claimant? I 

 say it is impossible that property should exist in one case, and not 

 exist in the other, or that projierty should be non-existent in one case 

 if it is not also non-existent in the other. 



But then my learned friend says iu effect: — Failing municipal law, 

 deriving no authority from municipal law for my position, yet there is 

 another law which gives me property, which gives me the right I claim, 

 and which is the law in this matter to determine the right of these 

 parties, and that is international law. 



Let us see if my friend is well founded there. What must he do; 

 must he not in order to derive support from international law estab- 

 lish — for the onus is upon him — that international law has laid down a 

 rule or a principle treating fur-seals in a way different from the mode 

 in which nmnicipal law regards them, as animals/erct' naturcef or in 

 other words, must he not support the proposition that, while by inter- 

 national law, all nations on the high sea are equal and have a right to 



