ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 281 



at all; it will not be denied that we could kill on the high position of mai- 

 seas; or, if it be denied, it will not be denied with very ice m the enquiry 

 much efficacy; our right would be undoubted. Again, examined. 



su])pose that from some cause or another (I care not what), the 



1056 United States should hnd it beneath its dignity, or not conducive 

 to its profit, to carry on tliis industry on the islands, — say, that 



it does not pay, for instance: tliey cease to carry on the industry. 

 Should we still be without our right to seal on the high seas'? Clearly 

 not. Can it be said that our rights, or their rights relatively to us, 

 shift and change according to the eventuality of whether there is or 

 is not, according to their own interest for the time, an industry carried 

 on there? It is impossible that legal rights can be of this shifting and 

 varying character. No, Mr. President; their rights are strictly those 

 which 1 have enumerated; the right to kill on the islands exclusively; 

 the right to kill within the territorial limits exclusively; the right to 

 com})ete on the high seas on terms of equality with all the rest of man- 

 kind: and that is the whole statement of their legal, positive rights. 



But there is another right, I admit. They would have a right to 

 complain (and this meets the whole of the illustrations which all the 

 ingenuity of my learned friends have supplied) if it could be truly 

 asserted that any class or set of men had, for tlie malicious purpose of 

 injuring the lessees of the Pribilof Islands and not in regard to their 

 own profit and interest and in exercise of their own supposed rights, 

 committed a series of acts injurious to the tenants of the Pribilof 

 Islands. I agree that that would probably give a cause of action ; and, 

 therefore, they have the further right (what I might call the negative 

 right) of being protected against malicious injury. 



Now I have stated, I conceive exhaustively, as a lawyer would state 

 them, and as a lawyer I respectfully think ought to state them, what 

 are the rights of owners of the Islands in relation to this so-called 

 industry. 



The point, Mr. President, to which you were good enough to refer is 

 well illustrated by reference to the case I mentioned yesterday, Keehle 

 V. Hiclcringill; and the passage is at page 116 of the printed Argu- 

 ment the United States. In the Report of this case in the 11th Modern 

 Reports, at page 75, Lord Chief Justice Holt says : 



Suppose the defendant had shot in his own ground ; if he had occasion to shoot it 

 would be one thing, but to shoot on purpose to damage the plaintiif is another thing 

 and a wrong. 



That brings out clearly and neatly the distinction; that is to say, 

 that when a man is exercising his right, a right which I assume that I 

 have established. by reference to the general law and by reference to 

 the Treaties, — to kill seals on the high sea, and he jmrsues that avoca- 

 tion or industry for the purpose of making a profit to himself and 

 making it legitimately for himself in that Avay, not thinking of injuring 

 anybody but merely of enriching himself in the exercise of what he 

 conceives to be his right, his act cannot be regarded as malicious : and 

 there is, from beginning to end of this case, no suggestion that the 

 action of the pelagic sealer could be proi)erly regarded as malicious, or 

 be attributed to any other motive than that of self-gain in the exercise 

 of a supposed right. 



1057 The President. — Would you consider, as having a certain 

 maliciousness in itself, what has gone on during the last two 



years, where the modus vivendi has impeded the process of seal killing 

 on the islands and left in the open sea, in the Pacific, at least, and 

 on the North-west Coast, the pelagic sealing quite free. We have 



