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§ 172. “Quarantine.”

SCOPE.—Quarantine was originally the term of forty days, during which a ship arriving in port, and suspected of being infected with a malignant or contagious disease, was required to remain isolated and was forbidden all intercourse with the shore. Hence it came to mean restraint or inhibition of intercourse; also the place where the infected or prohibited vessels were stationed. With the expansion of sanitary science and legislation, quarantine has acquired a much wider signification than that which it first possessed. It is now comprehensive enough to cover any forced stoppage of travel, or of transit, or of communication, as well as compulsion to remain at a distance, or in a given place, without intercourse, on account of any malignant, contagious, or dangerous disease on land as well as by sea. (Webster's Internat. Dict.)

QUARANTINE IN THE UNITED STATES.—The Constitution of the United States of America does not expressly confer on Congress jurisdiction to deal with quarantine. Laws relating to quarantine may, although not so intended, operate as a regulation of trade and commerce. Congress, like the Federal Parliament, has the exclusive power to regulate inter-state and foreign commerce. Hence it follows, that inasmuch as quarantine regulation necessarily involves temporary interference with and restraint of the movements of commerce, and of those engaged in it, the power of the States to deal with quarantine, although not taken from them and handed over to Congress, is strictly speaking very limited. In practice, however, the States pass quarantine regulations until Congress shall have interposed by independent legislation over the subject, or shall have forbidden State laws in relation thereto. So far Congress has not passed laws inconsistent with State quarantine laws; on the contrary it has adopted some of the State laws bearing on the subject. (Morgan's Steamship Co. v. Louisiana, 118 US. 455.)

QUARANTINE UNDER THE COMMONWEALTH.—The Federal Parliament has received a clearer and fuller grant of power relating to quarantine than Congress. It is given to Congress by implication; it is conveyed to the Federal Parliament directly. Out of that express grant amplifications and developments may flow which could not have been evolved from an implication. The Federal Parliament may deal with quarantine without reference to the interests of trade and commerce, but as an independent question having regard to the sanitary condition and welfare of the Commonwealth as a whole. It will be able to provide for the isolation, segregation, remedial and preventive treatment of animals and plants and their diseases wherever found within the Commonwealth. It would probably be able, if deemed desirable, to grapple with such problems as the tick plague or a phylloxera pest, in stamping out which the whole of Australia is interested. Such a power would only be exercised in cases of universal interest and of far-reaching importance, and for the purpose of reinforcing and not superseding the ordinary sanitary laws, institutions and authorities in operation within the respective States.

CANADIAN CASES.—By the Canadian Constitution, sec. 91, sub-sec. 11, the Dominion Parliament has exclusive jurisdiction over quarantine and the establishment and maintenance of marine hospitals. In Ringfret v. Pope, 12 Quebec L. R. p. 303, it was held that the preservation of the public health within the Province was a matter of merely local or private nature which, by sec. 92, sub-sec. 16, is exclusively within the jurisdiction of the provincial legislature. Cross, J., dissented from this decision, so far as it concerned the establishment of a central board of health with a system of subordinate boards. He said:—“Although the provincial legislature might make and enforce police regulations directly, or by giving that power to be executed by the municipalities so as to promote health within their several jurisdictions, or deal with the subject in a sense that was purely local, the Dominion legislature could deal with it in a general sense, and take appropriate measures to prevent or mitigate an epidemic, endemic or contagious disease, with which the Dominion, or any part of it, was threatened.” In 1869 a Bill providing for vaccination was not proceeded with in the Dominion Parliament, as it was


  ― 568 ―
considered doubtful if it was within its jurisdiction. (Bourinot's Parliamentary Procedure and Practice, 2nd ed. p. 674, citing Com. Deb. 1869, p. 64; Sen. Deb. 1879, p. 47; Lefroy, p. 659.)

The Legislature of British Columbia passed an Act enabling the Corporation of Vancouver to make by-laws for regulating, with a view to preventing the spread of infectious disease, the entry and departure of ships at the port of Vancouver, and the landing of passengers and cargoes from ships or from railroad cars. In the case of the Canadian Pacific Navigation Co. v. The City of Vancouver, 2 Brit. Columb. 193, it was held that this was not an infringement of the Dominion power to regulate trade and commerce. But according to the report of Sir John Thompson, Minister of Justice of Canada, dated 28th January, 1889, respecting the Nova Scotia Acts of 1888, authorizing the Governor in Council to regulate “with a view of preventing the spread of infectious disease, the entry or departure of boats or vessels at the different ports or places in Nova Scotia,” and the report of the same Minister, dated 21st March, 1891, on the Manitoba Act respecting the diseases of animals, it would seem that, in the opinion of the federal authorities of Canada, such legislation is an invasion of the Dominion power over quarantine. “The British North America Act,” says Sir John Thompson, “gives exclusive legislative power to the Parliament of Canada in respect of quarantine, navigation and shipping. It would clearly not be competent for a provincial legislature to make an enactment relating to the arrival of vessels, vehicles, passengers or cargoes from places outside the province, but it may be that provincial control may be exercised in relation to transport from one port of the Province to another, subject, of course, to any regulation on the subject of quarantine by the federal authority.”

51. (x.) Fisheries173 in Australian waters beyond territorial limits174:

HISTORICAL NOTE.—Sec. 91 of the British North America Act empowers the Parliament of Canada to make laws as to “sea coast and inland fisheries” (sub-s. 12). “Fisheries in Australasian waters beyond territorial limits” was one of the independent legislative powers of the Federal Council, under the Act of 1885; and the sub-clause in its present form was inserted in the Commonwealth Bill of 1891. In the Adelaide draft of 1897, it was adopted, with the addition of the words “and in rivers which flow through or in two or more States.” In Committee these added words were omitted. (Conv. Deb., Adel., pp. 776-8.) At the Sydney session, Mr. Kingston suggested “Australasian” for Australian, and also the insertion of some definition of Australasian waters; but no amendment was moved. (Conv. Deb., Syd., 1897, pp. 1073-4.) At the Melbourne session, after the first report, Mr. Barton moved an amendment to make the sub-clause read “Sea fisheries in Australian waters.” Mr. Kingston and others, however, pointed out the necessity of express words, in order to give power outside territorial limits, and the amendment, by general consent, was negatived. (Conv. Deb., Melb., pp. 1855-74.)

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