ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 323 



coast while so in sight or within such distance, until it shall have 

 arrived at the port where it has to j)erforin quarantine. This is the 

 whole of the Statute, I thiuk. 



The PRESIDENT. — I supi)ose that Statute is in application now, — is it 

 still in vigour? 



Sir Charles Eussell. — We have made the enquiry through the 

 Privy Council Ol'tice as to whether there was any record of its ever 

 haviug been put in force against foreign vessels, and this is the answer 

 we got: — Section 8 of the Act enjoined certain formalities on vessels 

 liable to quarantine as soon as they passed within two leagues of the 

 British coast; but the Act provides no machinery for enforcing these 

 Regulations on vessels that do not come within the ordinary limits, or 

 communicate with the shore, and the Privy Council are aware of no 

 instance of any attempt to interfere with any vessel simply passing out- 

 side the 3-mile limit, and, in fact, such interference would have been, as 

 far as they understand, both unnecessary and illegal. 



Mr. Phelps. — Is the Act repealed? 



Sir Charles Eus>sell. — ls[o. It is, therefore, not a Statute which 

 enforces any i)enalty in rem against the ship at all; it is one which 

 simply imposes a j)enalty against the Captain, which is not enforceable 

 till he comes within the jurisdiction of the Court, and comes with the 

 ship into the jjort, and wliich can only be recovered in the local munic- 

 ipal Court. 



Of course the performance of quarantine is an operation which must 

 be gone through in the territory of the port. The observation of Lord 

 (3hief Justice Cockburn alludes to this in his Judgment in the Queen v. 

 Keyn, and he treats it, and I think correctly treats it, thus. He says : 



I am further of opinion that Parliament has a perfect right to say to foreign ships 

 that they shall not, without complying with Britiwh law, enter into British ports, 

 and that if they do enter they shall he subject to penalties, unless they have pre- 

 viously complied with Requisitions ordained by the British Parliament. 



A proposition which is, as I submit, perfectly sound. 



Let me just ilhistrate that. I am quite unable to appreciate what is 

 in my friend's mind about this. Does he suggest that, uiuler this law, 

 we could go outside territorial waters and seize the ship — for instance, 

 a ship that was passing through the British Channel, beyond the three 

 mile limit, on its way to some European i)ort"? Does he suggest that 

 we could under this Statute go outside tlie territorial limits and seize 

 that ship, because she had not hoisted a signal? Such a thing would 

 be imi^ossible. The Statute creates a penalty, a penalty only recover- 

 able against the captain, and only recoverable in a municipal court, 

 when the ship arrives within the territory. 



Now I come to the next question, which my friend treats as 

 1107 important, which covers some space in the printed Argument. I 

 am referring to the last sentence of page 160, where my friend 

 says : 



Upon the same principle has been maintained the right of visitation and search, 

 as against every private vessel on the high seas, by the armed ships of any other 

 nationality. Though this vexatious and injurious- claim has been much questioned, 

 it is firmly established in time of war, at least, as against all neutrals. Says Sir 

 William Scott— 



And then he proceeds to give a citation. Then he says: 

 It has been said that the right of search is conlmcd to a time of war. 



