238 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



benefit, come in and break nj) that industry. Let me illustrate that. 

 I may assume that there are races of fishes whicli regularly visit a 

 shore. They may not be the property of the owners of that shore, 

 they may not be the property of the nation whicli holds dominion over 

 that shore; nevertheless, it is possible by making rules and regulations 

 to create an industry in them; and when that is done there is a thing-, 

 a cieation, which that nation has a right to maintain against the attacks 

 of the people of other nations. 



The President. That would create a right of protection over the 

 species. 



Mr. Garter. That is what I am arguing; it would give a right of 

 protection; the right of protection stands upon the industry which is 

 created. Writers upon the law of property tell us that i)roperty has 

 many forms. Sometimes it is the right to the exclusive use and dispo- 

 sition of a thing; sometimes it may consist of a mere lien on a thing; 

 sometimes it may be a right to go upon the land of another and do 

 something there; and sometimes it is what jurists caWjura mera:. facul- 

 tatis; but it is a right, and in the nature of property also. Now I wish 

 to give some illustrations which will show what I mean by the right to 

 carry on this industry. These Pribilof Islands are one instance, and 

 there are others. In our Case are given many instances, where i)eople 

 having a right of legislation have passed laws for the i)urpose of pro- 

 tecting fisheries and other industries against invasion. There are many 

 difi'crent instances of that sort. There are many instances where 

 Great Britain has passed laws of that character. I proceed upon the 

 assumption that lawful and useful industries can be created and pre- 

 served by the exercise of national authority in that way. Whether 

 this authority is susceptible of being asserted against the citizens of 

 other nations, or only against the citizens of the nations by which the 

 laws were passed, is another question, but the policy is in all instances 

 the same. Now I have instanced the Pribilof Islands. Another 

 instance is the fisheries on the banks of Newfoundland. Great Britain 

 asserted at an early period a right to the fisheries there, because she 

 had established an industry which had been maintained by her sub- 

 jects, who resorted thither for the purpose of catching fish. When the 

 United States gained their independence, they claimed to share in these 

 fisheries. They said: "We went there and established that fishery; 

 and now, having gained our independence we have a right to share in 

 the benefits to be derived from it". That right was denied by Great 

 Britain and the attempt to assert it was unsuccessful; but it was 

 admitted by both parties that it was a national industry, although the 

 United States contended that they had a right to x>articipate in it. 

 And there are numerous other cases where laws have been passed by 

 Great Britain for the protection of her fisheries. 



The President. Are these rights asserted now? 



]Mr. Carter. Well, I do not think they are i^ractically asserted on 

 the banks of Newfoundland now as against other nations. But they 

 were originally, and they tend to illustrate my argument. They illus- 

 trate the idea. The correspondence is i)rinted in our Argument. 



The President. Yes, but the exclusive right was not maintained as 

 a right. 



Mr. Carter. It Avas maintained as a right, and — 



]\Ir. Phelps. The whole correspondence is in the printed Argument 

 of the Case. 



The President. Your argument goes to show that the right extends 

 beyond the limits of the islands. 



