ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 505 



Sir Richard Webster. — Following tlie actual documents, I cannot 

 but assume that when Great Powers ])ut forward Treaties, that real 

 bo7ia fide straightforward action was taken by the Great Powers. 



The President. — At any rate, one fact is clear — that the Straits are 

 less than three miles wide. 



Senator Morgan. — They are about a mile and a half wide. 



The President. — Then it would seem they were territorial waters 

 unless Japan was brought to surrender what they considered as inland 

 waters. 



Sir Richard Webster. — The first right, as far as Great Britain is 

 concerned, was by Treaty. 



Senator Morgan. — They had been open to the nations of the world — 

 for a great many years prior to the action on the part of Great Britain 

 in making the Treaty. 



Sir Richard Webster. — The original right of Great Britain to go 

 through was by Treaty. 



Lord Hannen. — Great Britain preferred to take it by Treaty rather 

 than to assert it as an international right. 



Sir Richard Webster. — It does not seem to me that it is very close 

 to the point I was arguing ; but, of course, the Senator was good enough 

 to say that he desired it examined by the Counsel of both parties; and 

 I believe ([ speak with authority on this matter as my learned friend 

 Mr. Piggott is present), I have given an accurate account of the trans- 

 action as far as Great Britain is concerned unless documents are pro- 

 duced to show that I am wrong in that matter. 



You will remember. Sir, at the adjournment of the Tribunal, I had 

 pressed most strongly that, in the case of all wild animals, in order to 

 acquire property, possession must be taken; and, in reply to the ques- 

 tions put by the Senator before the adjournment, my contention is that 

 no property at all could be acquired in a seal inside or outside terri- 

 torial waters till possession had been taken, and the only way in which 

 property could be acquired is by taking possession; and, with refer- 

 ence to the point he put to me as to what would happen if a United 

 States subject killed a seal in the waters of Behring Sea, I would reply 

 to him that prior to the year 1889, when President Harrison came into 

 Office and the law was extended over the waters of Behring Sea up 

 to the eastern line, there was no prohibition against the killing of male 

 seals at all outside what may be called the territorial waters of Alaska. 

 That is, to say, outside the proper limit of territorial waters, there was 

 no prohibition against a United States subject shooting a male seal, 

 and he would have acquired the right of property in that male seal by 

 shooting it, or killing it, or by capturing it, and by no other operation. 



Now, I desire to supplement what I said in regard to this matter by 

 referring to two authorities only bearing on the question you were good 

 enough to put to me with reference to keeping the animals alive in a 

 pen or in an enclosure. It is a question entirely of whether the enclosure 

 in which they are held is such that you can, at any time, take possession 

 of them and capture them. That is referred to at page 31 of the British 

 Argument; and three authorities are given, one taken from a book, 

 which 1 think Mr. Justice Harlan has been recently looking through. 

 Pollock and Wright's book on " Possession in the Common Law", and I 

 read from page 31 of our Argument: 



Trespass or theft cannot at common law be committed of living animals fera 

 naturae unless they arc tiune or confined. They may be in the p:irk oj- pond of a per- 

 son who has the exclusive ri<>ht to take tliem, but they are not in his possession 

 unless they are either so confined, or so powerless by reason of immaturity that thoy 

 can be taken at pleasure with certainty. 



