143 



There are rules governing tlie acquisition of i)roi)Crty, not always 

 sanctioned by legislation, but yet common to the jurisprudence of all 

 countries, and Avhich we may not ignore or refuse to recognize. I can- 

 not conceive it to be possible that the Tribunal, in deciding a question 

 of property in animals, found in the high seas, may disregard the rules 

 of property which are imbedded in the concurring municipal law of 

 civilized nations. That must be deemed the law of all to which all 

 have assented. And so if the Tribunal should hold that these fur 

 seals are the property of the United States when found in the high seas, 

 it would thereby recognize the right of that country to protect them 

 against pelagic sealing, not because that right is secured by statute or 

 treaty, but because by the universal judgment of nations, the owner of 

 property may employ for its protection and preservation such means, 

 not forbidden by law, as may be necessary to that end. It is true, in 

 fact, that the recognized doctrines as to possession, detention, right of 

 possession, and right of property, as they have been applied in cases 

 which have arisen between independent states, arc derived from tlie 

 ]H'inciples of natural law as understood and as expounded by states- 

 men and public jurists. 



While there are wild animals whose nature and habits preclude the 

 possibility of their being appropriated as property, except when they are 

 confined or are otherwise in actual custody, there are others, valuable 

 to mankind and usually assigned to that class, which, by the common 

 law of the world, may, under given circumstances, become the property 

 of nuiii, without being held in continuous, actual possession. 



Attention will first be given to the Koman law, because Keason, which 

 governs the application of the principles of justice to particular cases, is 

 itself " guided and fortified by a constant reference to analogous cases 

 and to the written reason embodied in the text of the lioman law, and in 

 the works of commentators thereupon." 1 FhilUinorc, c. 8, sec. 58. 

 The same author observes that "the Eoman law may, in truth, be 

 said to be the most valuable of all aids to a correct and full knowledge 

 of international jurisprudence, of which it is indeed, historically speak- 

 ing, the actual basis." Again : "Independently of the historical value 

 of the Roman law as explanatory of the terms and sense of treaties 

 and of the language of jurists, its importance as a repository of decisions, 

 the spirit of which almost always, and the letter of which very fre- 

 quently, is applicable to the controversies of independent States, can 

 scarcely be overstated. From this rich treasury of the principles of 

 universal jurisprudence, it will generally be found that the deficiencies 



