74 



numbers engaged in limiting tliem, or tlint tlieir purpose is to destroy 

 them, or that tlieir implements of warfare are most deadly, can operate 

 to control tlie pelagic sealer outside tlie limits of territorial waters. 



This view of their rights is not disposed of by deciding that the United 

 States either has or has not the right to protect the fur seals, but that 

 question is pertinent in considering whether, under tliis treaty or iii 

 the international law, the right of pelagic hunting of fur seals exists 

 and whether it is an unlimited and unrestricted right. 



Lord Hauuen has expressed the opinion that all animals found swim- 

 ming in the sea, whether they are birds, tishes, or beasts, if they are not 

 within territorial waters, are the subjects of rightful pelagic hunting. 

 Under such a law an animal that is domestic, such as a hunting or 

 ducking dog, or a tlock of tame geese, or ducks, or swans, would forfeit 

 the protection of the law, and their owner would lose his property in 

 them ill favor of the better right of the first taker, if tliey, in search of 

 food or prey, should swim out on the Avater, as they often do, beyond 

 the ordinary 3-mile limit, or that such fowls would be liable to the 

 free H])ort of the hunter if they should fly through the air in their 

 excursions beyond that limit. 



In the effort of Lord Hannen to apply to the fur seals a rule of i>rop- 

 erty and the right of protection that would ai)ply to wild ducks and 

 geese, and to swallows whose nests are taken and used for food in 

 China, he neglects to give due weight to the cardinal fact on which, in 

 one aspect, the case of the United States is based. It is the fact that 

 the fur seals that are in, or that habitually resort to Bering Sea, are 

 swi <7eHcris, and that no other fishes, birds, or animals that visit the 

 ocean for food or pleasure have a certain fixed abode or home on 

 land. 



His lordship omits to give due weight to the fact that no other animal 

 visits its place of abode with such unvarying certainty, and tliat, wlien 

 they are assembled they live upon very limited areas of land, and in 

 compact masses, only se])a.rated from each other by the distance of a 

 few feet and arranged uiion adjacent grounds in classes entirely dis- 

 tinct from each other, Avhereby the animals that are fit for slaughter 

 for their pelts are kept entirely separate from those engaged in the 

 duties of procreation and the nurture of the young. So peculiar is this 

 trait that the young pups collect in groiqis, (tailed pods, and separate 

 themselves from all other classes of seals, and keep up the separation 

 until they return to the islands the next summer after they are born. 



