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Chapter I C. J. in Church v. Hubbart, expressly dealt with a statute for the protection of commerce.
pect of the
question raised by the quarantine law.
THE QUARANTINE LAWS.
The law of quarantine affords another illustration of defensive legislation.
General as- Looking at the question from a general point of view, it may be said that it is the fundamental idea of the law of quarantine to require certain things to be, and certain things not to be, done at a given distance from the shore by all vessels, national as well as foreign, coming to British ports. The penalty is enforceable on arrival in port.
In the fact that the Legislature commands something to be done on the high sea, and punishes disobedience to that command, there is an exercise of legislative authority on the high sea: though, in this case, the law does not sanction those active measures of punishment, chase on to the high sea and seizure, which it sanctions in the case of breaches of the Customs Act. And for this reason, that the offence against which the State desires to protect itself cannot be committed by mere hovering at sea, but only when the ship actually comes to port. Yet if, after the of fence is committed, the ship should escape to sea, the law of hot pursuit would immediately become applicable, and she could be pursued and brought in, and the punishment provided by the Act enforced.
This, it is suggested, is a sounder way of stating the principle on which this legislation rests than the explanation given by some of the authorities-that practically it amounts to no more than a prohibition against entering port unless certain conditions are fulfilled; and that, although the performance of quarantine may be said to be one of the incidents of trading, yet it may be avoided, and therefore that this jurisdiction is, strictly speaking, in invitum. This view of the matter was taken by Dr Lushington in the" Annapolis ", and was quoted with approv[Lush. Adm. al by Sir Alexander Cockburn :
"I am opinion that Parliament has a perfect right to say to foreign D. at p. 220.] ships that they shall not without complying with British law, enter into British ports, and that if they do enter they shall be subject to penalties, unless they have previously complied with the requisitions ordained by the British Parliament; whether those requisitions be, as in former times, certificates of origin, or clearances of any description from a foreign
port, or clean bills of health, or the taking on board a pilot at any place Chapter I in or out of British jurisdiction before entering British waters."
With deference, it seems better, if it can be justified, to put the quarantine law in the same category as the hovering law, rather than to rest it on this lower level. It is true that the practical aspect of the question is that executive and judicial action. are limited to the shore, yet, the mandate extends to the sea, and in this it resembles extra-territorial legislation in its ordinary form. The question is whether this legislation is to be governed by the strict rules of jurisdiction, or whether the reason of the thing does not justify a departure from them. It is submitted that it is amply covered by the broad principle of self-defence.
We must now proceed to examine in greater detail the Modern English law on the subject. It must first be noted that "qua- English view rantine" as an Erglish legal expression has disappeared. The tine. title of the Public Health Act of 1896 is, "to make further provision with respect to epidemic, endemic, and infectious diseases, and to repeal the Acts relating to quarantine ". The elaborate provisions of the Act 6 Geo. IV, c. 78, have disappeared, and the question is now treated as a part of the legislation dealing with the public health, power being given to the Local Government Board to make regulations to prevent the introduction of disease by ships" coming foreign ".
But since this law, which may be said to be the most scientific method of dealing with the question of quarantine, was only passed in 1895 (the Act of George IV indeed received the dignity of a "short title" in the same year), and since this method is far from being universally adopted, it is necessary for our present enquiry to examine the extra-territorial provisions of the old law [Both the old and the as well as those of the new : more especially as it was in presence new laws are of the old statute that Cockburn C. J. approved the general prin. set out in the ciple; and that similar provisions may still be found in the laws Appendix to this of other countries Chapter.] Taking the old law first in order, we find sections 7, 8, 9, and Examina10, applicable to ships on the high sea: the remainder of the Act 6 Geo. IV. dealing only with quarantine, i. e. with the duties laid upon mas- c. 78. ters of vessels, persons on board and others, on and after the arrival of the vessel in port.
The provisions of s. 7, which relate especially to vessels within or without the Straits of Gibraltar," need not detain us.
Chapter I The others need the same dissection as those relating to hovering at sea.
The old law of quaran
A duty is imposed by s. 8 on the master of a vessel " liable to the perfomance of quarantine" to hoist a signal at the maintop masthead by day and night, which varied according as the ship had a clean or foul bill of health. This signal was to be hoisted on meeting with any other vessel at sea, or when she herself was within two leagues of the coast, and was to be kept hoisted while the other vessel was in sight, or while she was within the two leagues from the coast.
By s. 9, another signal was required to be hoisted, and kept hoisted as before, when there was plague or infectious disease on board; and, as before, when meeting any other vessel at sea or while she was within the two leagues.
A penalty was imposed by s. 10, on any master hoisting such signals, knowing that the vessel was not liable to quarantine.
In the first place, these provisions apply as well to foreign as to English ships: and in so far as they applied within two leagues from the coast they did not differ, as regards reasonableness of distance, from the Hovering Act. But the duty of hoisting signals on meeting other ships at sea is drafted so vaguely in s. 8, that it might have extended all the seas over, unless a more restricted meaning can be given to the words " vessel liable to the performance of quarantine". If they were intended to refer to vessels coming from an infected port and "liable to the performance of quarantine" on arrival in port, there is no apparent limit to the area within which the duty was required to be performed; the liability to quarantine resulting from the fact that her destination was a British port. But if these words only meant that the signals were to be hoisted after the liability to perform quarantine had actually arisen, i. e., after arrival in port, or at least within the waters of the realm, then the meeting "at sea" must have been used in a colloquial sense, and the area of the law's operation would have been two leagues. The difficulty of determining the area seaward to which the law applied arises from the fact that "within two leagues" and "at sea" are throughout used in the alternative. The Act throws no light on the question by means of a definition.
But s. 9 is still more difficult to construe. The definition of the ships to which the section applied is not, as in the previous
section, those "liable to the performance of quarantine ", but Chapter I those "on board whereof the plague or other infections disease or distemper highly dangerous to the health of His Majesty's subjects shall actually be ". From the general terms in which the section is drafted, it would appear to apply to all vessels and to the whole sea. There are indications however, towards the end of the section, that it was intended, like the previous section, to apply only to ships coming to British ports.
On these difficult questions we have no authority to guide us, except the general principle laid down by Cockburn C.J., referred to above, that a State has a right" to take all necessary measures for the protection of its territory and rights", irrespective altogether of the 3-mile limit. It may be, however, that should the question ever come to be fully argued in respect of similar provisions of foreign laws, that the Courts might find some more reasonable interpretation than that they applied during the whole of the ship's voyage to a British port: or, if that were the only possible interpretation, might apply the doctrine that the extent of jurisdiction claimed by a defensive law must be reasonable, and hold that such an extended jurisdiction was not a reasonable exercise of the right of self-defensive legislation.
I pass now to the modern law of quarantine, which is con- Modern law tained in the Public Health Acts of 1875, and 1896, and in certain regulations of 1896 made thereunder.
for preventing introduction of contagious
By ss. 130 and 134 of the Act of 1875, power was taken for diseases. the Local Government Board to make regulations for the prevention of the spread of epidemic, endemic, or infectious diseases, and to apply them to vessels within the territorial waters; and by the Act of 1896, further powers were taken for enforcing the regulations by Customs and Coast-guard officers, for signals to be hoisted by vessels with cases of disease on board, for the detention of such vessels, and prevention of persons landing.
Three separate sets of regulations have been issued for England, Scotland, and Ireland respectively, in practically iden- [set out in Appendix tical terms. The most important provision is that which requires a master of a vessel infected with cholera, yellow fever, or plague, Chapter.] to hoist" a large flag of yellow and black, borne quarterly "; when within 3 miles of the coast, no person being allowed to leave such ship after arrival until permission given.
This legislation is based on the following principles.
i. The regulations which may be made under s. 130 of the Public Act of 1875, are general sanitary regulations forming part of the municipal law. They are extended to the sea within three miles from the coast, i.e. to the territorial waters, as they were subsequently defined in 1878. There is no limitation as to the nationality of the vessels to which they may be applied. The [see Chapter question again arises, however, whether under the Act of 1878, the sanction of the Secretary of State is necessary to prosecution for offences. This will be discussed in a later chapter.
ii. By s. 134, special regulations are to be mabe when any part of England appears to be threatened, or is affected, by formidable disease. These regulations are expressly declared to be applicable to any vessels on the inland waters, or on arms or [see Chapter parts of the sea within the jurisdiction of the Admiral. The full III.] meaning of this expression will be considered presently: for the present it is sufficient to say that the use of the words "arms or parts of the sea" would seem to point to the fact that the regulations are not intended to apply to ships upon the high sea, even to British ships.
39 & 40 Vict. c. 36
[set out in
iii. The Act of 1896 extends the power of the Local Government Board to make regulations to matters which formerly appertained to quarantine: among others, to the signals to be hoisted by vessels having disease on board.
The law applicable to vessels arriving from infected ports is to be found in the Customs Consolidation Act, 1876; s. 234 of this Act provides that persons shall not land without permission Appendix to from vessels coming from, or having touched at, any place where there is reason to apprehend that yellow fever or other highly infectious distemper prevails". The necessary orders are to be given by the Local Government Boardt from time to time. The section also requires a signal to be, and remain, hoisted by such vessels until permission is given to haul it down.
Apart from this, one clause of the regulations contains all the law on the subject. It provides for the hoisting of signals by ships infected with cholera, yellow fever and plague, when within three miles from the coast; persons being forbidden to leave the ship without permission.
+Formerly, by the Queen in Council. This amendment was made by 59 & 60 Vict. c. 19, s. 2.