should be made to those who exhibit them, why should it not be made in this case? Therefore I say that upon the plain doctrine of the municipal law, the position of the United States, that these seals are the subject of property, and that they belong to the United States, not only while they are on the islands, but at all times during their migrations, near or remote, is fully established. I might properly leave the argument here. The propositions in respect to property which I have shown to be true in reference to other animals, wild in their nature but reclaimed by man, are true in respect to seals. There are indeed differences between seals and the other animals; but the differences are wholly immaterial to the question in dispute. They do not affect it at all. The right of property is awarded in those instances for social reasons and in consequence of great social benefits; and these social reasons and social benefits are as strong-I may say much stronger -in the case of the seals than they are in the case of any other animals to which allusion has been made as being subjects of property after they are reclaimed. It may be said that in the case of the other animals, like wild geese, and swans and deer, that the disposition to return has been created by man. Suppose it was created by man in those instances, and not created by man in the case of the seals. Would that make any difference? No. The public and social benefits which result from an award of property are the same in the one case as in the other. But it is not true, this suggestion that the instinct is created in the case of the other animals. The instinct to return is natural in all the cases alike. Man only acts upon it; and he acts upon it in the one case just as he acts upon it in the other. If there was not a natural instinct to return in the case of wild geese and swans, they could not be made to return. It is their native qualities. their natural instincts, which are acted upon by the art and industry of man and which produce the useful result; and they are acted upon in the case of the seals just as much. Of course it is true that the wanderings of the seals from the place to which they thus resort are much wider and more protracted than in the case of the other animals; but has it ever been suggested in the case of the other animals that the question whether an award of property could be made would depend upon the extent of their wanderings? Not at all. No matter how widely they may stray, no matter how long they may be absent, so long as you can say that the animus revertendi remains, so long the property exists and will be protected. In respect to seals, we may say, with a certainty and absoluteness which cannot be declared with refer

ence to other animals, that the animus revertendi does always exist. It may be said—indeed, is said, as I observe, in the argument of my learned friends on the other side-that the seals do not return to the same particular spot. It is said that a seal may go one year to the Island of St. George and in another year he may go to the Island of St. Paul. Of what consequence is that? . The only important thing about it is that the animal should return to the human owner; that he should return to the custody of the owner who has exhibited the care and diligence which enables him to put that return to advantage. All these islands are the property of one proprietor, and all the benefits which can possibly arise from the return of an animal to a particular place, and a submission of himself to the power of man, can be reaped in the case of the seals.

It is suggested that we are not certain that the seals that come this year are the same seals that were there last year, and it is suggested that there is an intermingling between the two herds on the two sides of the Pacific Ocean; that seals which frequent the Commander Islands, belonging to Russia, are found mingled with the herds which go to the Pribilof Islands. That is all conjecture. There is not an item of evidence tending to show that any such commingling as that occurs in point of fact. It is against the teachings of natural history. It is against everything which we know in reference to the habits of this particular herd. All parties were agreed, until it became of some importance to suggest some failure of identification, that this particular herd that visits the Pribilof Islands confines itself to the western coast of America. It goes nowhere else. These are its sole places of resort for the purposes of breeding; and it is proved with a certainty which any court of justice would act upon anywhere that any seal found upon the western coast of America belongs to that particular herd and makes those islands his home.

I have said that these doctrines are clear upon the settled rules of municipal law; and for reasons which we find plainly apparent in the doctrines of municipal law. But I am not disposed to leave the question there, because the argument can be strengthened. I have said nothing about the original principles and rules upon which the institution itself of property stands. The institution of property is anterior to municipal law, or anterior, at least, to any considerable degree of development of that law. It is assumed to exist by municipal law; and it is only in these comparatively rare instances, exceptional instances, such as swans and bees, pigeons

and deer, that the question of the foundation of the institution of property has been inquired into by those who administer the municipal law. There are those instances; but what if we should inquire into the foundations of property generally, and see what the reasons are which support it? Why is it that the institution of property exists at all? Why is it that one man is permitted to own one hundred thousand acres, if you please, of the earth's surface, and another man have not where to lay his head? Why is it that society permits one man to hold, and defends him in holding, storehouses, whole magazines of provisions, while another is starving for hunger? Those things cannot be arbitrary. Such an institution cannot be the result of chance, cannot rest upon any arbitrary reasons. It must stand upon great social grounds; and therefore it is very pertinent to inquire what those social grounds are.

I therefore invite this tribunal to accompany me in a somewhat larger inquiry, very pertinent to the matter which is now before them, an inquiry as broad as the social interest of all nations, which this tribunal is supposed to represent.

THE PRESIDENT: You want to take us into a discussion of socialist theories or principles?

MR. CARTER: I do not object to discussing socialist theories, provided they are pertinent, and I can reduce them into some brief compass. The president's question reminds me of an observation of one of his countrymen, called illustrious by his friends, and, I suppose, denounced as notorious by his enemies. It was the Frenchman Prudhon, who said that property is robbery; and he was right. Property is robbery, unless you can defend it on some great social grounds, and support it upon the basis of great social benefits. If you can show that it is necessary to society, necessary to order, necessary to civilization, and necessary to progress, then you can defend it. Otherwise, it is robbery.

What is property? It is sometimes said to be the right to the exclusive enjoyment of a thing; but that rather indicates the jural right which belongs to it and is attached to it, and not the thing itself. What is it? I think it is well expressed by one or two writers to whom I will call attention. It is very hard to define what property is. We can feel it; it is hard to define it.

Savigny says:

"Property, according to its true nature, is a widening of individual power. It is, as far as tangible things are concerned, an extension of the individual to some part of the material world, so that it is affected by his personality."

And the philosopher Locke expresses the same idea. He says:

"The fruit or venison which nourishes the wild Indian

must be his, and so his, i. e., a part of him, that another can no longer have any right to it," etc.3a

A German writer of great distinction, Ihering, gives substantially the same definition of it:

"In making the object my own I stamped it with the mark of my own person; whoever attacks it attacks me; the blow struck it strikes me, for I am present in it. Property is but the periphery of my person extended to things."

"3b

That is a very happy definition of what property really is. It is a part of the person, and whoever touches the property of a person touches him. Whoever touches the property of a nation touches the nation itself.

That is a description of the thing itself. Now, what is the right on which it is founded? In going into this inquiry as to what the right of property is founded upon, I am not going to deal with any abstract question; nor am I going to deal with questions that have not been considered as within the province of jurists. On the contrary, I am entering on a question which has been, from the first, considered peculiarly the province of jurists, and especially of jurists dealing with the law of nature and the law of nations. The great writers upon that law, beginning with Grotius, have considered that no ethical system could be complete, and, consequently, that no system of the law of nature and nations could be complete, which did not deal with the institution of property and the foundations upon which it rested. And in what I am going to say, I shall do little more than recall views which have been before stated and developed by very many different writers. Possibly I may carry them a little further in the development; but for the most part I shall only repeat what has been said before.

These writers, in endeavoring to ascertain the foundations of the institution of property, take first into consideration its universal prevalence everywhere all over the globe, and in every stage of human history, and then recognize in this the truth that it is and must be founded upon the facts of man's nature, and the circumstances, the environment, in which he is placed. They tell us that man is by nature a social animal, and must live in society, and that society is not possible unless we can have order and peace. Wherever there is anything desirable to men, wherever there is an object of human desire, of which the supply is limited

Ja Civil Government, c. 5, § 25.

b Thering, quoted by George B. Newcomb, Pol. Science Quarterly, vol. 1, p. 604.

Veeder II.-78.

-where there is not enough for all-there will necessarily be struggle and contention for the possession of it; and if there were nothing to prevent it, those who had the most power would engross the most valuable things of the world. There would be constant warfare for the possession of desirable things where there was not enough for all, unless there were some rule and some means by which that warfare should be prevented. Therefore, property at once becomes a necessity, in order that there may exist peace and order in human society.

We may say, therefore, that the foundation of property, its first and original foundation, was in necessity, the necessity of peace and order; and that necessity requires that property be carried to this extent that every object of desire, the supply of which is limited, must be owned by somebody. When you have that state of things, you have peace, and until that state of things is established, you cannot have peace. Therefore we find that everywhere where men are formed into human societies, a determinate owner is assigned to every object of human desire, the supply of which is limited. Those views are well expressed in the early part of Blackstone's Commentaries on the Law of England. He has a very elegant chapter, to which I would refer the particular attention of the members of the tribunal. He says:

"Again, there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance, and which yet would frequently be found without a proprietor had not the wisdom of the law provided a remedy to obviate this inconvenience, Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands. Such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of "game." With regard to these and some others, as disturbances and quarrels would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension by vesting the things themselves in the sovereign of the state, or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate owner."4

And Lord Chancellor Chelmsford made use of the same doctrine in rendering the decision of the house of lords in the case, very familiar to my friends on the other side, doubtless, of Blades v. Higgs. That was a case where a trespasser entered the grounds of another where he had no right, and killed some game there;

• Mr. Carter also referred to Maine, Ancient Law, c. 8, p. 249.