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



Their Lordships think it right to add that they are of opinion tliat if the wider con- 

 struction had been applied to the statute, and it was supposed tliat it was intended 

 thereby to comprehend cases so wide as those insisted on at bar, it would have been 

 beyond the jurisdiction of the Colony to enact such a law. Their jurisdiction is con- 

 fined within their own territories and the maxim which has been more than once 

 quoted " extra territortum jus dicenti impune non paretur" would be applicable to 

 such a case. 



Then, Mr. President, follows a statement on page 59 of our Argu- 

 ment of those cases where the law does recognize the right of a State 

 to acquire certain portions of tlie water of the sea and of the 

 1166 soil under the sea, and to include them within its territory; 

 I do not stop to dwell upon them because I do not conceive it 

 necessary, but they "will all be found to be cases which are either 

 defensible as being bays or within a headland ofifing, or being simply 

 portions of contiguous sea as to which possession, or what was treated 

 as ])ossession, has been acquired. 



Then at the bottom of page 59, and on page 60, there is a brief con- 

 sideration of the point of whether there can be said to be any analogy 

 between the claim to property in and to ])rotect free swimming animals, 

 such as fish and seals, and a like claim in respect of oysters which have 

 a tlxed locus, or coral beds which have a fixed situs : but I do not propose 

 to trouble you with dwelling upon that subject. I have so frecjuently 

 enunciated the principle that I do not desire to do more than refer to it 

 in the words of Chief Justice Cociiburn in the case of Queen v. Keyn, 

 which is a case deser\ang of notice on many grounds, first because of 

 the examination of the general law to which many judicial minds on 

 that occasion applied themselves, but also because the case itself was 

 a remarkable illustration of the regard paid by the law of England to 

 that principle of strictly confining a law of a country to the territorial 

 limits of that country. What was that case? It was the case of an 

 oflence supposed to have been committed witliin three miles of the 

 coast, and therefore within the narrowest limit fixed as the territorial 

 zone; and yet the majority of that Court declined to afdrm tlie propo- 

 sition that the Courts of Great Britain had jurisdiction, without legis- 

 lation, to deal with an offence committed within the three mile limit: 

 it was a very remarkable illustration of the tenacity with which that 

 principle is observed. 



On the next page of our Argument, page 00, we recur to the argu- 

 ment on the "Hovering Acts", as towhich, incidentally, I shall have to 

 say a word presently in connection with a case to which I shall call 

 attention. The Quarantine Acts have already been dealt with, and I do 

 not trouble the Tribunal with that matter. 



I therefore invite the Tribunal on this part of the case to arrive at 

 the conclusion that the assertion by the United States that the practice 

 of nations supports the claim now put forward is without foundation. 

 If it is regarded as an assumption of jurisdiction on the high sea, it 

 was entirely beyond the power of the United States Congress to pass 

 the act applying to foreigners; for, without the acquiescence of other 

 nations, and without example in the practice of other nations, it 

 infringes upon the rights of those nations upon the high seas. 



If, on the other hand, it is to be regarded as part of the general juris- 

 diction exercised by the United States over Behring Sea, it Avas also 

 beyond the power of the United States to make the act apply to foreign- 

 ers; for, without the consent of other nations, and without example in 

 the practice of other nations, it extended the territorial waters of the 

 United States to a limit hitherto unknown and unrecognized, and in so 

 doing, it infringed upon the rights of other nations upon the high seas. 



