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



Sir Charles Eussell. — The '^San Diego ^\ She was seized agum 

 later. That probably will explain it. There are several vessels of that 

 name, but this one was seized in 1876. 



Now the Tal)le to which I was calling: attention, and which faces page 

 590 of the same volume, show\s that in 1880 there were 7 British and 9 

 American vessels. 



In the year 1881 there were 7 British and 2 American. 

 10G2 In 1882 there were 12 British and 3 American. 

 In 1883 there were 10 British and 3 American. 



In 1884 there were 5 British and 6 American. 



In 1885 there were 3 British and 11 American. 



I need not follow it to the end. The columns are long, and will take 

 some time to add up: but when you get on a little further they seem to 

 be about equal numbers all through; and towards the end I think there 

 are more British. I therefore treat this matter in this way. 



Mr. Phelps. — The British Commissioners' Eeport increased the 

 number of British vessels. 



Sir Charles Eussell. — My friend Mr. Phelps says that the figures 

 given by the British Commissioners increase the number of British ves- 

 sels in later years. That may be so. It does not touch my argument. 



The matter therefore stands thus: Pelagic sealing outside Behring 

 Sea lawful by the law of the United States; no allegation that the pur- 

 suit of such sealing, although contrary to the United States law, which 

 binds only its own nationals, inside Behring Sea, was contrary to the 

 law outside Behring ^^ea, or was maliciously pursued either inside or 

 outside. And lastly the point which Sir John Thompson has suggested, 

 and which I have already endeavoured to make — that no suggestion of 

 malice can be maintained when the thing is done in pursuance of what 

 is claimed to be a right, and for the profit of the individual who pursues 

 that right. 



Further, if it is necessary to add anything else — if malice can enter 

 into this question at all — it must be malice in the individual: you can- 

 not attribute malice to a mass of individuals. Therefore I think I have 

 given sutficient reasons why my friends have not made this point. It 

 would be a bad one if they had made it. They have made some points 

 which I cannot think are good; they have not made this j)oint, which 

 I submit would be utterly bad. 



But now I have to call the attention of the Tribunal to what would 

 have been the far-reaching consequences of this contention: I have 

 1 hts in 'Stated, simiDly and I think correctly, the contention of my 

 an "Indust^ry" learned friend as follows — that when a nation has an 

 examined. industry ou its shorcs which depends on the resort to its 



shores of certain animals which that nation has no exclusive right to 

 take, and in which it has no property, it nevertheless may claim that 

 the killing on the high sea is an invasion of its right, although such 

 killing is itself done in the exercise of a right, if the result of that 

 killing is to interfere with the animals reaching the land, and so to 

 lessen the possible profit which may be made on the land. 



We know what rights are attached to an industry. There is the right 

 to carry on the business. If there is a good-will; there is a right to the 

 good-will. If there are trade-marks in connection with the business, 

 those trademarks may be protected. It may be defended against mali- 

 cious attack. But this exhausts the statement of the rights, both 

 1063 positive and negative. There are no other rights in connection 

 with it known to the law: the catalogue is exhaustive. Always 

 bearing in mind that we are arguing upon the assumption of no property 



