RIGHT TO PROTECT INTERESTS AND INDUSTRY. 149 



foreign vessel found to have been intending; such trade was seized on 

 the high seas, carried into a Portuguese port, and there condemned. 

 And it was held that the seizure was legal, Chief Justice Marshall de- 

 livering the opinion of the court. He points out with great clearness 

 the difference between the right of a nation to exercise jurisdiction, 

 and its right of self-defense. 1 



Lord Chief Justice Cockburn, in his opinion in the case of Queen v. 

 Ivehn, supra, cites this decision with - approval, and quotes from the 

 opinion. He says (2 Law Rep., 214): 



Hitherto legislation, so far as relates to foreigners in foreign ships 

 in this part of the sea, has been confined to the maintenance of neutral 

 rights and obligations, the prevention of breaches of the revenue and 

 fishery laws, and, under particular circumstances, to cases of collision. 

 In the two first, the legislation is altogether irrespective of the three- 

 mile distance, being founded on a totally different principle, viz, the 

 right of the state to take all necessary measures for the protection of 

 its territory and rights, and the prevention of any breach of its revenue 

 laws. This principle was well explained by Marshall, 0. J., in the 

 case of Church v. Hubbart. 2 



The opinion of Chief Justice Marshall and the language of Lord 

 Cockburn, above cited, very clearly illustrate the distinction between 

 a municipal statute and a defensive regulation. The one emanates from 

 the legislative power, and has effect only within the territorial jurisdic- 

 tion in which it is enacted, and upon those subject to that jurisdic- 

 tion elsewhere. The other is the exertion of executive authority when 

 necessary for the protection of the national interest, and may take place 

 wherever that necessity exists. Statutes intended for such protection 

 may, therefore, have effect as statutes within the jurisdiction, and as 

 defensive regulations without it, if the Government choose so to enforce 

 them, provided only that such enforcement is necessary for just defense, 

 and that the regulations are reasonable for that purpose. (Supra., 

 pp. 169-171). 



Such was the view of the United States Supreme Court in the Say- 

 ward Case, in respect to the operation of the acts of Congress before 

 referred to, for the protection of the seal in Bering Sea. In that case 



1 For full quotations from this opinion, see Appendix to this argument, infra, p. 181. 



2 After quoting at huge from Chief Justice Marshall's opinion, Lord Cockburn 

 proceeds to say: "To this class of enactments belong the acts imposing penalties 

 for the violation of neutrality and the so-called 'hovering acts' and acts relating 

 to the customs. Thus, the foreign enlistment act (33 and 34 Vic. C. 90) which im- 

 poses penalties for various acts done in violation of neutral obligations, some of 

 which are applicable to foreigners as well as to British subjects, is extended in S. 2 

 to all the dominions of Her Majesty, ' including the adjacent territorial waters.'" 



