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



recognition, in tlie case of the AViiters of Behring Sea and the other 

 waters, involved in the controversy whicli led uj) to those Treaties, of 

 the general right of all mankind to fish in the sea and to take therefrom 

 outside territorial waters whatever they are able to capture. These 

 are the hypotheses, these are the data, in view of which this proposi- 

 tion must be api)roached; and 1 say it without any affectation, with 

 the greatest respect for my learned friend Mr. Phelps and for his inge- 

 nuity, that 1 find it difficult to understand and to appreciate what it is 

 that I have to meet on this part of the case. The lessees may be 

 treated, for the purpose of this discussion, as the owners of the islands 

 and the owners of the industry. What is their position ? What 

 1055 is their industry*? They wait until the seals come to the islands, 

 and, when the favourable opportunity offers, they select such as 

 they desire to kill, and adopt the best means they can for killing them. 

 They are in this exercising their right as owners of the territory. 

 Nobody disputes their right. They may extend that right still fur- 

 ther, assuming them to be the possessors of the island, as I am doing 

 for simplicity's sake, and if they choose they can supplement their 

 killing on the island by killing within the three miles of territorial 

 waters, and by claiming to exclude, and rightfully claiming to exclude, 

 all others from that area; and, if they choose further, they may go out 

 on the high seas and compete with others who are sealing upon the 

 high seas. These are their rights fully and exhaustively stated: their 

 right to kill the seals upon the land, — an exclusive right; the right to 

 kill within the territorial waters, — an exclusive right; their right, on 

 terms of equality with all whose interest or convenience may prompt 

 them to resort to the high seas, to pursue and kill the seal. 



Where is the right that is invaded by that pelagic sealing*? Where 

 is the legal right invaded? Because, to constitute an invasion of a 

 right, you must first prove the existence of the legal right. It is not 

 enough to prove that their industry (if I must use that phrase) may be 

 less profitable to them because other persons, in the exercise of the 

 right of sealing on the high seas, may intercept seals that come to 

 them, — that may be what lawyers call a damnum, but it is not an 

 injuria; and I have no doubt the legal minds I am addressing under- 

 stand the distinction between the two. 



Let me assume that the island is divided by a boundary line, between 

 two owners, one half of the island, given to A., the other half given to 

 B. Would A. have an action against B. — could he complain that B. 

 had perpetrated a legal injury upon him, if B. not merely killed the 

 seals that came to his own division of the island, but exercised his 

 right of sealing on the sea and killed seals there which might have 

 gone, or some of which might have gone, to the land of A: if B. had in 

 other words exercised his right to kill on the high sea"? That would 

 have been a case in which the profits or the volume of A's business 

 might have been diminished, and he would, therefore, have suffered a 

 loss, a damnum; but a damnum does not give a legal right of action. 

 There must also be the injuria, — the invasion of the legal right; There 

 must be injuria cum danino; the combination of the two. 



The President, — Unless done maliciously. 



Sir Charles Eussell. — You are good enough, Mr. President, to 

 anticipate the very next topic, — perhaps not immediately the next, but 

 a topic to which 1 am going in a moment to advert. 



Let me illustrate the position of things a little further by j)utting an 

 imaginative case or two. Suppose there was no industry on the island 



