ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 383 



that the French decree of condemnation must he considered as settling the facta 

 involved; and if a seizure within a less distance from shore was necessary to juris- 

 diction, the decree may have determined the fact accordingly; and the verdict in 

 the Circuit Court did not disclose the opinion of the jury ou that point. The Judges 

 dilit'ered in stating the priuciplo of this case and of Hose v. Himelij; and the report 

 leaves the diiference somewhat ohscure. 



This subject was discussed incidentally in the case of the " Cagliari," which was 

 a seizure on the high seas, not for violation of Revenue Laws, but on a claim some- 

 what mixed of jtiracy and war. In the opinion given by Dr. Twiss to the Sardinian 

 Government in that case, the learned writer I'efers to what has sometimes been 

 treated as an exceptional right of search and seizure, for revenue purposes, beyond 

 the marine league; and says that no such exception can be sustained as a right. He 

 adds: "In ordinary cases, indeed, where a merchant-ship has been seized on the high 

 seas, the sovereign whose iiag has been violated waives his privilege, considering the 

 ofl'ending ship to have acted with mala fides towards the other State, with which he 

 is in amity, and to have consequently forfeited any just claim to his protection." He 

 considers the Revenue Regulations of many States, authorizing visit and seizure 

 beyond their waters, to be enforceable at the peril of such States, and to rest on 

 the express or tacit permission of the Stateji v/hose vessels may be seized. 



It may be said that the principle is settled that municipal seizures cannot be made 

 for any purpose beyond territorial waters. It is also settled that the limit of these 

 waters is, in the absence of Treaty, the marine league or the cannon-shot. 



It cannot now be successfully maintained either that municipal visits and search 

 maybe made beyond the territorial waters for special pui'poses, or that there are 

 diflerent bounds of that territory for diflerent objects. But as the line of teriitorial 

 waters, if not hxed, is dependent on the unsettli'd range of artillery tire, and if tixed, 

 must be by an arbitrary measure, the Courts, in the earlier cases, were not strict as 

 to standards of distance where no foreign Powers intervened in the causes. 



In later times, it is safe to infer that judicial, as well as political Tribunals will 

 insist ou one line of marine territorial jurisdiction for the exercise of force on foreign 

 vessels, in time of peace, for all purposes alike. 



Sir Charles Eussell. — This, Mr. President, seems to us, as we sub- 

 mit, a very intelligible and very accurate criticism of the cases that are 

 til ere referred to. 



For the jiurpose of this argument I have not felt called upon to enter 

 upon any very precise or critical examination of many points which may 

 be said to be in a certain degree indeterminate even at the present 

 moment. I mean, whether it can be said that the territorial waters are 

 absolutely fixed at three miles: whether the law as to embayed waters 

 and headlands, and various things of that kind, is perfectly clear. 

 1180 These are matters as to wliich, unquestionably, even up to the 

 present day, writers widely differ; but upon the question of the 

 extent to which, territorially considered, a municipal law can operate, I 

 cannot think tliat there can be any ground for difference of opinion: 

 namely, that the statement which is attributed to that learned Judge — 

 directed to the validity of a municipal seizure, that is a seizure under 

 a municipal law outside three leagues from the coast — is, at least, a 

 matter that is far from being clear. 



It is very ditticult to see how, if once you recognize the fact that a 

 Statute can only operate co-terminously with the territory of the State, 

 you can say that the municipal Statute, as of right, can operate outside 

 by any process of law. And without expressing (for it is not my func- 

 tion to do itj any opinion or view uj^on the matter, at all events I may 

 go so far as to say, that it is at least doubtful whether the true justi- 

 fication for acts done even under the so-called Hovering Acts outside 

 the territorial limits does not rest upon the implied assent of other 

 countries who will not interfere to protect their own nationals if they 

 believe that those natioiials have, in bad faith, been endeavouring to 

 violate the laws of a friendly Power, — the State in question regarding 

 those laws as just, reasonable and necessary. 



Lord Hannen. — And you may add " and having similar laws of their 



