OkAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 363 



1868", -which prima facie applies only to subjects of the Crown, and not 

 to foreigners, gives to the Crown the right, by Order in Coun- 



1155 cil, to specify boats, whether British or foreign, and so bring 

 them within the operation of the Act. Now 1 call attention to 



what the actual state of the case is, and to the further fact that no such 

 Order has been ever made to include any foreign boats, and that there 

 has never been any assertion of power under this Act as against any 

 foreigner wliavever. 



I might, but for the way in which it has been referred to, dismiss it 

 very lightly, because at page 93 in our Counter Case, relating to this 

 matter, we make this statement: 



As to Ireland, the British Government have never assumed to put in force against 

 foreigners any bye-laws made under "The Seal Fisheries Act, 1868," affecting waters 

 outside territorial limits. And although this Act is relied on in the United States 

 Case as authorizing the assertion of jurisdiction over foreigners outside those limits, 

 no bye-law having that effect exists, and it would be contrary to the practice of the 

 British Government that any such bye-laws should be made, unless in pursuance of 

 some Treaty with the Power whose subjects may be affected. 



Now that is a statement of fact my learned fi"ieud, when he came to 

 prepare his Argument did not meet, and could not meet, and it ought 

 to be quite enough for the purpose of this discussion. 



But the matter is gone into fully in the British Argument at page 50. 



The Statute permits the Irish Fishery Commissioners to regulate, by bye-laws, 

 oyster dredging on banks 20 miles to seaward of a certain line drawn between two 

 headlands on the east coast of Ireland. 



Within this line the extreme depth of indentation is not more than 5 miles. 



The Act provides that the bye-laws are to apply equally to all boats and persons 

 on whom they may be binding; but they are not to come into operation until an 

 Order in Council so directs. 



The Order in Council is to be binding on all British sea-fishing boats, and on any 

 other sea-fishing boats specified in the Orders. 



Therefore, till there is an Order specifying any except British sea 

 fishing boats, it has, and can have, no application to any other. 



The facts which have occurred since the passing of the Statute are as follows: 



The Commissioners have made a bye-law appointing a close time. 



The bye-law was put in force by Order iu Council of the 29th April, 1809. 



The Order recited the power given to the Queen by the Act to specify other besides 

 British boats to which the bye-law was to apply. 



No other boats were so specified. 



The law is therefore expressly limited to British boats within the 20 miles. It 

 cannot by the terms of the Act itself apply to any foreign boats. 



It would be contrary to the principles on which British legislation invariably pro- 

 ceeds that bye-laws should applj' to foreign boats outside the 3-mile limit, unless 

 power to enforce such a bye-law against the boats of any nation had been acquired 

 by Treaty. 



The provision was inserted in the Act to provide for the case of any such Treaty 

 being entered into. 



Thereafter, without such enabling provision in the Act, the Queen would possess 

 no power to make an order in Council bringing foreigners within the Act. 



The statement made in the United States Case is therefore inaccurate. 



You see therefore the object of the assertion of that power: because, 

 if a Treaty should be made with any other State that might be inter- 

 ested in this fishery, the Queen would have had no jurisdiction 



1156 to apply it to persons outside the three-mile limit other than her 

 own subjects, unless the Statute gave her express power so to do. 



Now the next case referred to is the Scotch Herring Fishery; and 

 precisely the same thing may be said of this: 



By the Act of 1887, 52 and 53 Vict, cap. 23, a close time is provided, and trawling 

 is prohibited within the north eastern indentation of the coast of Scotland; the line 

 of limit is drawn from Duncansby Head, in Caithness, to Kattray Point, in Aber- 

 deenshire, a distance of 80 miles. 



