Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-01-28

The most recent contribution to the litera-
ture bearing on the Boring sea dispute 10 q
paper written by DR.. James C. yelling, presi-
dent of the Columbian University, and issued
In pamphlet form in the series Of Columbian
University studies. DIR. Yelling, besides hsv-
ing the dignity and responsibilities attached to
the office Of president Of the university in pro-
fessor Of international law in the law school Of
tbs university. The paper referred to is en-
titled "The Boring Sea Arbitration; or. Pelagic
Sealing Juridica!ly Considered According to
Particular Analogy Of Municipal Law
Reduced to the simplest words Dr. yelling
suggests the application to the case Of the
seals Of the legal principle under which a man
would reclaim his flock Of pigeons or swarm of
bees. So DR.. Wellings discussion of the sub
ject revolves mainly about the first principle of
law, that relating to the convertibility Of wild
animals into property by occupation, and espe-
clally such animals as possess, in legal phrase,
the animus reverend. or the disposition to re-
turn to certain place. This disposition,
where it would be turned by man to economic
uses, is shown by DIR. yelling to have been
recognized by law and writer's on law from the
earliest times as an element in determining
property rights. Carrier pigeons and bees are
cited as instances, qualified property right in
them being recognized.
tinues TO depend entirely on the degree to
which that quality, under human regulation,
can be utilized for economic ends, and this
utilization for economic ends (as we see in the
case of bees) is most Immediately available in
the case of animals which have, by nature, an
habitual disposition of return which so ties
them to given place that the habit may be di-
rectly used for economic purposes. The
economic aptitudes of such animals, if they be
found in sufficient numbers to make their in
closure or husbandry an object of gain. can be
made at once the basis of economic computa-
tion-a basis of computation almost as fixed as
the soil to which they are tied by the habit Of
return"
PROPERTY IN THE SEALS.
1t would seem, he says, that these facts in
the economics Of natural history nd the rules
of law which have been based on them are not
without their application to the controversy
now pending between the United States and
Great Britain with regard to the capture on
the high seas of fur seals which have their
birthplace in Alaska and which. in all their Pc
lagic migrations, are known to have an animus
reverend which gives to the breed a calcu-
liable value at the point of fixed return. This
anlmu5 revertendi. 1t is true, Is not the crea-
ton of human art in seals, any more than in
bees; but for the very reason that it has fixed
quality it can be made, under proper control,
the more tributary to mans emolument. On
the faith of this instinct, and of the property
right which it conditionates and assures so long
as it is not disturbed. the government of the
United States has done infinitely more for the
Alaskan seals which it husbands than the most
enthusiastic apiculturist has ever essaved to do
fo- the honey bees which he may have domesti-
Gated and lnclosed in patent hives of the latest
construction and most costly variety. The
highest researches of statecraft. of aGministra-
tive policy, of police control and even Of inter-
national diplomacy have been put in requisi-
finn for fho Of frry- hva.
the ground that the fur-seal husbandry is fac
tor in our national economics. as well as in the
economics OF the world, and on the further
ground that depredations committed on the
seal herds in their pelagic migrations must lead
eventually to the destruction Of the fur-seal
species in Alaska Gas has happened elsewhere),
and so must inure to the economic detrlment
OF the United States. 1t is further argued that
the capture of seals in their periods of annual
migration is attended with circumstances of
wantOn barbarity and OF wasteful excess. which
should be prohibited In the interest Of public
and private morality.
To the writer Of this paper it does not seem
that the United States, in the purchase Of
Alaska from Russia, bought along with it a
mare clausum In the Boring sea. The United
States could not buy more than Russia had to
sell. But the United States could buy from
Russia right to the undisturbed enjoyment Of
the Alaskan seal usufruct on sea AS well as on
land. for this is a right which Russia enjoyed
and . right which. attaching as it does TO ami
mails having the animus REVEREND is rooted in
a rule of reason and of law old as the prop
erty law of historical jurisprudence. The rule
WAS old in the days of Gaius. He says it is one
which in his day had been handed down as
settled law.
As the animus revertendi nsures the owners
property right in inclosed bees. when they have
swaimed I'm such way as to De identifiable) On
the land of a neighbor, though they cannot
there be reclaimed without '.trespass," it would
seem not unreasonable to hold that the owners
property right in inclosed seals should be Sc
cured by their animus revertendi during the
period of their pelagc migrations, since, II
they are OF right reclaimable at all, thev are
there reclRimable without liability to indict-
ment for "trespsss." Writs will not run either
for the action in trover of tYespass on the
case within the mo mans land" of the inap-
propriable ocean; but the rules of right between
two nations ought to be essentially the same rs
the rules Of right between two individuals, how
ever different may be the rules of procedure.
WHY NOT on TEE SEA?
To hold that the animus reverend of Alaskan
seal herds is sacred from assault within three
miles from the shore, but is open to marauders'
violence at distance one mile further while
the animus rsvertendi remains Just as strong in
the remoter rs il the nearer stretches Of their
migratiOns) Is to play fast and loose with this
rule OF right and SO to convert it into deu-
sion and snare. The seal husbandman who
should learn that the animus revertendi of bees
will protect the owners right in them indefi-
nitely. even when 1t runs on land where another
has the ius domini, but that in the case of seals
it will not run on salt water more than three
miles, though outside of that limit nobody has
a ius dominii to plead against 1t land though.
too, it is just as strong at a distance of four
miles or 400 miles outside of that limit Is at a
distance Of ono mile inside of the limit), might
be sorely tempted to commit even Q worse
irrevereuce than that Of Mr.. Bundle when, in
his legal discontinue, he exclaimed, 1.-The Law
is a ass, a idiot! "
Nations in general have not pronounced the
capture of seals on the high seas to be contra
bonos mores. The reply of Lord Salisbury un-
der this head seems to be conclusive but it is a
reply which moves. and was intended to move
in static law alone. The argument of Mr..
Blaine moves in what We may call the dynamics
of international law, because it moves in the di-
rection of that ''moral ideal which is the per-
petual point de mire Of advancing civiliza-
tion-a moral ideal accepted by Lord Salisbury
himself when he says that her majesty's gov
eminent would deeply regret that the pursuit
Of fur seals on the high seas by British vessels
should involve even the slightest injury to the
people Of the United States
DIR. Yelling says: At bottom under the cir
cumstances and conditions of the arbitration
agreed upon, the question now pending be-
tween the United States and Great Britain with
regard to the fur seals of Alaska is this: VIII
fine Dronerfy riphts of thu civilize ,rorid -