142 OKAL ARGUMENT OF JAMES C. CARTER, ESQ. 



interest in the herd at all, they do yet have a jiroperty interest in the 

 industry which has been established by them on those islands, of caringj 

 for and maintaining that herd and selecting from it the annual increase 

 for the purposes of commerce; in other M^ords, in the husbandry which 

 is carried on by the United States on those islands. 



We assert those two forms of property interest; but my discussion 

 will be directed in the first place to an endeavor to support the asser- 

 tion of property in its first form; that is to say, in the herd of seals 

 itself. 



Now, questionsof property are extremely common in municipal juris- 

 prudence, as we know; but they are for the most part such as relate to 

 the transfer and devolution of ]>roperty, and do not touch the point 

 whether any particular thing is the subject of property at all. In this 

 discussion, what we have to consider cliietly is whether these fur-seals 

 are, while they are on the high seas, the subject of property at all. 

 The assertion on the part of Great Britain I assume to be — indt^ed, 

 they so inform us in their Case, Counter Case, and Argument — that 

 the fur seals are wild animals — animals /<?>•«? naturcv — and that they are 

 therefore not the subject of property at all; that they are res communes, 

 as the civilians sometimes say, or, as they at other times say, res nul- 

 lius — things common to all men, or things which belong to no one num 

 in particular. Their couteiition is that while on the high seas, at least, 

 being wild animals, they are not the subjects of property at all. 



The United States take the contrary position, and assert that such 

 are the nature and habits of these animals, and such is the relation 

 which they have to these animals on the breeding places, that they are 

 at all times, not only while they are upon the Pribihtf Islands, but also 

 while upon the seas, the property of the United States, and property 

 which they are entitled to defend and protect, just as much as they 

 would one of their ships when navigating the seas. 



My learned friend. Sir Charles Eussell, made an observation when he 

 was speaking upon one of the preliminary motions which have been 

 made before the Tribunal to the elfect, as I understood him, that prop- 

 erty could not be established outside of municipal law, or that any- 

 thing, in order to be held as property, must have its characteristics as 

 pro})erty ^^rooted in municipal /««'." I do not know that I am correctly 

 stating his observation; but it is as near as I remember. Well, that 

 appears to be an intimation that we are obliged, in order to determine 

 whether the seals are the subject of i>roperty, to recur to municipal 

 law. But it seems to me that if we were limited to munici])al law in 

 our inquiries, we might find the greatest ditticulty. The municipal law 

 of what country'? If we speak of municii)al law, we must go to the 

 municipal law of some particular country. Will you settle it accord- 

 ing to the municipal law of the United States'? That would be a short 

 settlement of it; for in every form and manner in which a nation can 

 declare its policy by the adoption of municipal laws, the United States 

 have declared seals to be proi)erty. My learned fi-iend, I ai)piehend, 

 would not agree that thecjuestiou of ]>roperty in seals should be deter- 

 mined by munici])al law, if we are to determine it by the u^unicipal law 

 of the United States; and I do not know of any law of Great Britain 

 which is to tlie ettect that seals are not jjroperty. According to my 

 vievv, the law by which this question, as any question which arises 

 between nati(ms, is to be determined is not municipal law, but interna- 

 tional law. To be sure, any question in reference to property which 

 has a situs in any particular country, like land, must be determined by 

 the municipal law of the country where it is situated. That is undoubt 



