to be inferred that no rule exists. A rule is then to be drawn from the dictates of natural justice, to which nations are presumed to yield their consent.

Assuming that the foregoing observations were well founded, Mr. Carter maintained that the tribunal, in making its decision, should look, first, to "the actual practice and usages of nations," as found in their relations, their treaties, and their diplomatic correspondence; and, second, to the judgments of courts which profess to administer the law of nations, such as prize courts, and in some instances courts of admiralty. If these sources failed to furnish a rule, the tribunal should look, third, "to the great source from which all law flows, the dictates of right reason, natural justice; in other words, the law of nature." And in ascertaining the law of nature on any particular question, the tribunal should look, fourth, to "the municipal law of states, so far as it speaks with a concurring voice," as "a prime fountain of knowledge;" and, fifth, in all cases, with respect, to "the concurring authority of jurists of established reputation who have made the law of nature and nations a study."

In support of his argument Mr. Carter cited, in addition to the authorities already referred to, the following: Sixty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 197; Pomeroy, Lectures on Int. Law, ed. 1886, Ch. I. secs. 29, 30, 31, 33, pp. 23-26; Phillimore, Int. Law, 1871, Ch. III. 14-28; Maine, Int. Law, 13-47; Wheaton, Int. Law, part 1, ch. 1, secs. 4, 14; Kent, Comm. part 1, lect. 1, pp. 2-4; Halleck, Int. Law, Ch. II. sec. 13, p. 50, and sec. 18, p. 54; Woolsey, Int. Law, ed. 1894, sec. 15, p. 14; Wolff, quoted by Vattel, preface to 7th Am. ed. p. ix.; Hautefeuille, Des Droits et des Devoirs des Nations Neutres en temps de Guerre Maritime, 1848, vol. 1, pp. 12, 46; Bentham, False Manner of Reasoning in Matters of Legislation; Pufendorf, Le Droit de la Nature et des Gens, by Barbeyrac, 5th ed. vol. 1, book 2, ch. 3, sec. 23, p. 243, et seq.; Ortolan, International Rules and Diplomacy of the Sea, Paris, 1864, vol. 1, book 1, Ch. IV. 71; Heineccius, A Methodical System of Universal Law, by Turnbull, 1763, Secs. XII., XXI., XXII.; Vattel, 7th Am. ed. preface, pp. v. vì. xiii. lvi. sec. 5, p. lvi. sec. 6; Martens, Law of Nations, by Cobbett, 4th ed. 1829, introduction, 2; Ferguson, Manual of International Law, 1884, Vol. I. Part I. Ch. III. sec. 21, p. 66; Testa, Le Droit Public Int. Maritime, by Boutiron, 1886, part 1, ch. 1; Burlamaqui, The Principles of Natural and Politic Law, by Nugent, 1823, Part II. Ch. VI. 135, 136; F. de Martens, Int. Law, Paris, 1883, vol. 1, pp. 19, 20; Li. R. P. Tuparelli d'Azeglio, de la Compagnie de Jésus, Traduit de l'Italien, 2d ed., II. ch. 2; Grotius de Jure Belli ac Pacis, Proleg.; Heffter, Int. Law of Europe, 2; Bluntschli, Le Droit Int. Codifié, pp. 1, 2; P. Fiore, book 1, ch. 1; Ahrens, Course of Natural Law, Vol. II. Book III. ch. 1; Massé, Commercial Law, Paris, 1874, book 1, Lib. II. ch. 1, p. 33; Renault, Introduction à l'Étude du Droit Int., Paris, 1879, 13, 14.

diction and of Property.

Mr. Carter next considered the subject of Questions of Juris "the acquisition by Russia of jurisdictior:al or other rights over Behring Sea and the transfer thereof to the United States." Referring to the first four questions submitted to the tribunal of arbitration, Mr. Carter said that, in the discussions of the authority which nations might exercise on the high seas, two subjects, essentially distinct, had been confounded. One was the sovereign right of making laws operative on the high seas and binding upon foreigners and citizens alike, which must be limited by some definite boundary line, and the other was "the protection afforded by a nation to its property and other rights by reasonable and necessary acts of power against the citizens of other nations whenever it may be necessary on the high seas without regard to any boundary line." The term "jurisdiction" had been indifferently employed to denote both things, and it had thus become a word of ambiguous import. Indeed, the two subjects might appear to have been to some extent confounded, or blended, in the minds of the negotiators of the treaty, which required the tribunal to determine, on the one hand, what "exclusive jurisdiction" in Behring Sea Russia had asserted and exercised, which might not unreasonably be understood as referring to sovereign legislative power, and, on the other hand, what exclusive right in the "seal fisheries" in Behring Sea Russia had asserted and exercised-"a totally dif ferent question, although a decision of it, affirming the exclusive right, might carry with it, as a consequence, the right to protect such fisheries by a reasonable exercise of national power anywhere upon the seas where such exercise might be necessary." It was to this second question that the real controversy related, "and the first was intended to be included only so far as it might have a bearing upon the second." An effort had, continued Mr. Carter, been made in the British Case to make it appear that the United States had shifted their ground, first by maintaining that Bebring Sea was mare clau sum, next by claiming an exclusive jurisdiction of one hundred miles around the Pribilof Islands, and lastly, by abandoning both those positions and asserting a property interest in the seals. But he contended that the "first attitude" of the gov ernment in relation to the matter, when it sought the cooperation of other powers in the protection of the fur seal, in order to avoid the exercise of the exceptional marine jurisdiction

which the peculiar nature of the property might justify, was "the suggestion of a property interest." Mr. Blaine also "improved the first occasion upon which he was called upon to refer to the subject to place the claims of the United States distinctly on the ground of a property interest, which could not be interfered with by other nations upon the high seas by practices which in themselves were essentially immoral and contrary to the law of nature." While Mr. Blaine had, in his own opinion, established his contention that Russia's claim in 1821, of exceptional authority over the seas, was never abandoned by her, but was acquiesced in by Great Britain, as to the coast north of the sixtieth parallel of north latitude, yet counsel preferred, said Mr. Carter, to submit to the tribu nal "that Russia had for nearly a century before the cession of Alaska established and maintained a valuable industry upon the Pribilof Islands, founded upon a clear and indisputable property interest in the fur seals;" that the United States had since the cession "carefully maintained and cherished that industry," and that the destruction of it might be prevented "by the reasonable exercise of necessary force on the high seas."

The third division of the argument of the Questions of Prop- United States related to "the property of the erty and Protection. United States in the Alaskan seal herd and their right to protect their sealing interests and industry." The first branch of this subject-the "property of the United States in the Alaskan seal herd"—was treated by Mr. Carter, who began by distinguishing between the question of a property interest in the seals themselves and the question of a property interest in the industry long established on the Pribilof Islands of maintaining and propagating the seal herd, and appropriating the increase for the purposes of commerce and profit. If it were determined, said Mr. Carter, that the United States had the property interest which they asserted only in the industry established on the shore, it might, with some show of reason, be insisted that if the industry were not actually established they would have no right to forbid interference with the seals in the open sea; but if it were determined that the United States had the property interest which they asserted in the seals themselves it would follow that they would have the right at any time to take measures to establish such an industry, and to forbid any interference with the seals

which would tend to make its establishment impossible or difficult.

The first proposition which he would endeavor to maintain was, continued Mr. Carter, that the United States had, “by reason of the nature and habits of the seals and their ownership of the breeding grounds to which the herds resort, and irrespective of the established industry above mentioned, a property interest in those herds as well while they are in the high seas as upon the land." The position taken by Great Britain was that the seals were res communes or res nullius ; that they were not the subject of property, and consequently might be pursued and captured on the high seas by the citizens of any nation. The United States insisted, on the other hand, that the terms feræ naturæ and domitæ naturæ were not sufficiently precise for a legal classification of animals in respect of the right of property in them, and that the determination of the question depended upon the characteristics of the animal. There was no principle of jurisprudence, said Mr. Carter, to the effect that no wild animals were the subject of property. On the contrary, in the Roman law, as well expressed by Blackstone, a distinct consideration was given to the question what animals commonly designated as wild were the subjects of property, and to what extent; and the doctrines of the Roman law in this regard had been everywhere accepted. According to those doctrines, the essential facts which rendered animals commonly designated wild the subject of property, not only while in the actual custody of their masters, but also when temporarily absent therefrom, were, said Mr. Carter, "that the care and industry of man acting upon a natural disposition of the animals to return to a place of wonted resort secures their voluntary and habitual return to his custody and power, so as to enable him to deal with them in a similar manner and to obtain from them similar benefits as in the case of domestic animals." For the application of this doctrine of property per industriam he contended that the Alaskan fur seals furnished a typical example. By returning "in obedience to the imperious and unchangeable instincts of their nature to the same place, and voluntarily

Pufendorf, Laws of Nature and of Nations, Lib. 4, chap. 6, sec. 5; 2 Kent's Comm. 348; Davies v. Powell, Willes, 46; Morgan v. Earl of Abergavenny, 8 C. B. 768.

2 Comm Book II. 391.

subjecting themselves to the power of man," they became "the subjects of ordinary husbandry, as much as sheep or any other cattle." What difference could be suggested between the seals and animals such as deer, bees, wild geese, and wild swans, which appeared by the authorities to be universally regarded as property so long as they retained the animum revertendi? In either case the essential thing was that the art and industry of man should bring about the useful result on which the law makes its award of property, and to this end human art, care, and industry were as necessary and as effective in the one case as in the others. If the difficulty of identification should be suggested, the answer was that there was no commingling of the Alaskan and Russian seal herds; but were the case otherwise, all the fur seals in the North Pacific were in the same condition as those of Alaska, and were entitled to protection.

Mr. Carter next proceeded to inquire into The Institution of the causes of the institution of property and Property. the principles upon which it stands. Property, as defined by Savigny, was "a widening of individual power." The right of the individual to extend his power over the natural world rested on necessity, and, in the words of Blackstone, "necessity begat property." And as the first necessity of the social state-peace and order-required that ownership should be enforced to the limited extent which savage conditions required, so the second necessity of society-its progress and advancement-that is to say, civilizationdemanded that individual effort should be encouraged by offering as its reward the exclusive ownership of everything which it could produce. Hence the institution of property embraced all tangible things, subject only to three excepting conditions: 1. That they must have that utility which makes them objects of human desire. 2. The supply must be limited. 3. They must be susceptible of exclusive appropriation. The principles of natural law and the practice of nations accorded with these conclusions. But, although the existence of human society necessitated the institution of property, it did not, continued Mr. Carter, determine the form which the institution assumed. Universal ownership might satisfy the absolute necessities of a rude society, but in all advanced societies the condition found was individual ownership. The moral ground

5627-53

1 Comm. Book II. 8.