272 ORAL ARGUMENT OF SIR C^TARLES RUSSELL, Q. C. M. P. 



I will ask the Tribunal to turn to the ar.nnmeiit of my learned friend 

 Mr. Phelps as it is set out in the printed book. I do not refer to it for 

 Examinaton of ^'^^ purpose of goiu-j;' tlirougli it page by page. I have 

 Mr^^Fhl^ps'^aTgu- Stated the main proposition which is laid down in it, Imt 

 iu«"t- there are certain statements incidentally made in the 



course of that argument which I cannot pass without some notice. The 

 first of these is on page 132. It is the sentence which runs thus: 



The complete right of property in the Government while the animals are upon the 

 shore or are within the cannon shot range which marks the line of territorial waters 

 cannot be denied. 



This the Tribunal will see is not relevant to the point as to the indus- 

 try apart from property; but I cannot pass it by without pointing out, 

 as I have already done in relation to Mr. Coudert's argument, and as I 

 have already done in relation to Mr. Carter's argument (though it did 

 not appear there so prominently as in Mr. Coudert's), that there is here, 

 as it seems to me, a distinct misstatement of the law. 



There is no complete property while the animals are upon the shore, 

 or within cannon-shot at all! The oidy right that exists is the right 

 upon which I have already, I am afraid with ))ainful reiteration, again 

 and again insisted — the simple right, ratione soli : the right to capture, 

 the right to kill, the right thereby to take ]iossession; but there is no 

 complete right of property ; and therefore there is this fundamental 

 error, as I conceive, at the basis of the whole of that argument as to 

 property. To that point, however, I am not again going to refer. 



On page 134 again, at the bottom of the page, is another misstate- 

 ment, as I conceive it to be, which I wish to correct. 



The whole herd owes its existence, not merely to the care and protection, but to the 

 forbearance of the United States Government within its exclusive jurisdiction. 



1046 Now I wish simply to say that we know that that fact is not 

 correct. If the United States had nobody there the seals would 

 be there; if the islands were no man's land, the seals would be there — 

 they would be there all the more because of the absence of man or 

 human interference; and the very regulations which Mr. Coudert 

 described, by which dogs were forbidden, lest their barking should dis- 

 turb the seals or frighten them, or keep them away — the very remote- 

 ness of human dwelling from the places of the seals — the fact that even 

 smoking is forbidden lest it should frighten away the seals, their sense 

 of smell being so acute — all these things go to show that it is an entire 

 mistake on the part of the Uuited States to suggest that the herd oices 

 its existence to them. The herd would be there all the more if they were 

 not there; and if they even attempted artificially to do something to 

 induce them to go there it would have a repelling effect, and not an 

 inducing effect; and all they do is the one thing which I have again 

 and again referred to, namely, that for their own uses, and for their 

 own purposes, they prevent trespassers raiding on the island. 



I pass on to the next page, the top of page 135. I do not dwell upon 

 it, but there is this statement of Mr. Phelps: 



While the seals are upon United States territory during the season of reproduc- 

 tion and nurture, that Government might easily destroy the herd by killing them 

 all, at a considerable immediate profit. From such a slaughter it is not bound to 

 refrain. 



It conflicts with the contention of my friend Mr, Carter, and I leave 

 them to settle their differences upon this j^oint between themselves, 

 venturing at the same time to express my preference for the law as laid 

 down by Mr. Phelps. I think he is perfectly right in saying that the 



