60 



ernmental control of the fiir-seals, to prevent tlieir destruction, and the 

 alleged fact that such control can be elliciently exercised onlj^ by the 

 Government whose territory is occupied by them at their birth, and 

 while they are their x^roperty, ratione impotcntia; 



Fifth, as a right of property based on the fact that, with the acquies- 

 cence of all nations, established by the fact that no objection or jn'otest 

 was made or adverse action was taken by any nation for a period of 

 ninety years, an industry was established, depending for its support 

 ui)on the preservation of the stock of fur-seals, which will be destroyed 

 if indiscriminate pelagic hunting is further permitted. 



This is the lirst international controversy that has arisen as to the 

 right of property in or protection of fur-seals, and there is no case, in 

 point, to which reference can be made as settling the law of nations on 

 the subject. But there is no right, recognized by international law, 

 that is opposed by the case of Great Britain to either of these claims of 

 the United States to the ownership of the fur-seals in question, except 

 the right of free fishing in the open sea. This right is claimed for its 

 subjects by the Government of Great Britain, and is made to include 

 fur-seals, as free swimming animals, /ertc naturcv. 



The universal right of free fishing in the open sea is established in 

 the custom of nations, which is the law of nations, and is not disi)uted 

 by the United States when it is conducted in a just and reasonable 

 manner and against fishes or aninmls that are res nnllius. 



The free right of fishing can not be exercised to make a lawful cap- 

 ture of fur-seals if they are not wild animals, or if they are animals 

 wild in their nature, but have been lawfully appropriated by a govern- 

 ment and are at large in the ocean with the i)urpose of returning to 

 the dominion of the owner, or under the compulsion of an instinctive 

 necessity for returning to the dominion of the owner, which the ani- 

 mals habitually and periodically obey. 



The right claimed by Great Britain is in every sense a right to hunt 

 and to kill game. The seals are luwer taken, as sometimes fishes are, 

 for purposes of propagation, but only for their value when they are 

 killed. The arts of fishing with hook and line and bait are never prac- 

 ticed as to fur-seals" and would be utterly without success. Catching 

 them with seines or nets is impracticable as an industry and, when prac- 

 ticed, only small animals are captured and none are taken alive. That 

 is only a method of capturing them by drowning. The death of tiie game 

 is the only means of capture at sea, an*d that is conducted with the liar- 



