75 



Nature lias not given to i\uj otlier class of animals, wild or domestic, 

 this clear indication of their serviceable quality for the use of man and 

 their unavoidable destiny to become subject to his complete dominion. 



The wdd geese and ducks and the swallows mentioned by Lord 

 Hannen never lose the instinct of escape from man, which the seals 

 have not except when they are in the water, and even there it can 

 scarcely be called an instinct or habit, until it has been created in them 

 by the ill usage of pelagic hunters. 



When swallows, geese, and ducks wish to escape from the presence of 

 man they have, at all times, the means of escape on the wing, which is 

 their effectual method of avoiding capture. 



The seal on land are almost entirely incapable of escaping death at 

 the hands of man. The breeding i)laces of the wild ducks and geese 

 are scattered around the whole earth, above certain latitudes, and many 

 species breed in all latitudes. They are res nuUiiis because man can 

 not lay either his destructive or preserving hand on them at pleasure. 

 Would it be so as to their nests or eggs, which may be taken at pleas- 

 ure, or their young that can not escaj)e, and are, rationc soli, the property 

 of the owner of the soil 1 



There is nothing in the eviden(;e relating to Chinese swallows or 

 their nests, but if they build their nests on the rocks along the sea- 

 coast, as I am informed they do, the nests belong to the owner of the 

 soil as much as the honey collected by bees and stored in a tree that 

 stands upon his land. But it is needless to seek for rules that will 

 govern the rights of the United States in respect to fur seals by citing 

 those that may militate against those rights when applied to fishes, 

 birds, or beasts, that differ from them in their essential and elementary 

 instincts and do not invoke the duty of preserving them by laws, be- 

 cause they can not escape from man or protect themselves. 



I do not intend to examine the question of property, or the right of 

 protecting it, with reference to the bearing and authority of cases de- 

 ciiled in England or the' United States. As far as analogies may be 

 useful in reaching just conclusions, they are found to support the con- 

 tention of the United States ux)on the authorities that have been so 

 ably discussed. 



Mr. Justice Harlan's very clear and cogent opinions on this view of 

 the case, in which he quotes with^ approval from the text books upon 

 municipal and international law, really leave -nothing for me to say. 

 I fully concur in what he has said on these topics. But I feel war- 



