64 



them aroniMl tlie e:irtli. on land and sea. All he is required to do to make 

 his possession complete is to identify his property in any way he can. 

 And, so, if the United States own the fur-seals before they cross the 3-mile 

 limit, and have a constructive legal possession of them up to that line, 

 and if the seals are, for instance, nursing mothers going after food to 

 nurture their pups on shore, with a fixed purpose of returning to it, 

 the constructive possession of the animals is secured to the United 

 States after tliey cross the 3-mile limit. Without this there could 

 be no security for property in animals when they are not on the own- 

 er's land, even when they are within his view and he is guarding them 

 in the best way he can. 



If the seals are wild animals belonging to the United States by tlie 

 declaration of positive law, or ratione soli, or ratione im;potentia, or by 

 actual cax)ture, and if this property is not lost when the animal goes 

 into the ocean for food or pleasure, with the intent to return, or under 

 an instinct that dominates its movements and leaves it without an 

 option as to returning, one who captures it when thus atlarge deprives 

 the United States of their property. If the cai)tor is a citizen of the 

 United States he is guilty of the double wrong of breaking the pre- 

 serve of the United States, which is closed as to him, and of taking its 

 property. That is poaching. If the captor is a British subject he 

 commits a tresi)ass on the jiroperty of the United States, because he 

 found it at a place in the open sea to which it went lawfully and 

 where it was constructively in the lawful possession of the United 

 States. 



The case might be different, would be different under the English 

 common law, if the seal, being a wild animal, should enter within 

 British territorial limits and there be slain or captured. In that case 

 the possession would change so as to give the right of property, ratione 

 soli to that Government, and that right, or that lawful i)ower over the 

 animal would continue while it remained on British territory. But this 

 is the only instance in which the United States would lose its right of 

 property in the Ahiskan fur-seal, born on its soil, while the aininns 

 revertendi Gontinned to control its movements in its visits to the ocean. 



The indefinite right of private fishing in the open sea, in favor of an 

 individual, is too slight and ill-founded to overcome the right of prop- 

 erty in a nation that is trying to prevent the pelagic hunter from 

 destroying a great production of commercial value, a source of revenue, 

 and ah instruaientality of government. Kot that the property rights 



