PUBLIC RECORD OFFICE
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Reference :-
C.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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any other Act than that which is sent to us to see, named the Bait Act, and its Amendment Act. The officers acting in the matter, Inspector Sullivan and Commander Robinson, were acting as Commissioners" appointed under the Bait Act,
in his judgm
the care, Mr. Justice Little, while reversing the decree of uad been against the vessels, on the ground that the Act was verbally derective on that point, es not, in any way, attempt to supplement that defect by reference to any other Act which might be called in aid of it.
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Taking, therefore, the Bait Act and its Amendment Act as governing the question alone, it is perfectly clear that they do not enact any power to board or search specifically the language of the Bait Act is, in fact, on many points ambiguous; but for the Amendment Act, I should have questioned even if it intended the jurisdiction which it provides to be extended to the three-mile zone at all; for, although it names selling or purchasing for the purpose of sale on or near any parts of the Colony or of its dependencies, yet it goes on to name particularly "bays, harbours, or other places therein which would be the waters inter fauces or land inside the territorial zone, and, according to the construction of Acts, this particular reference might be held to have a serious effect in lessening the extent of the general words. I think, however, that the reference to territorial waters in the Amendment Act wonld probably cure this defect.
There is, however, no language whatever approaching to a power to board or search in the Act. All it says is that persons" found hauling, catching, or taking, shipping. "or conveying may be examined, and, failing to satisfy upon examination, that their ** vessels may be seized;" but as for any express power to go on board, and examine and overhaul a vessel, merely on suspicion, there is no provision of the kind.
Mr. Justice Little, in his judgment, (page 7), treats the right of visiting, within the zone referred to, any and every vessel that may be reasonably suspected, as an
'indispensable preliminary" to the right of seizing.
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I write with considerable diffidence upon the decision of a Judge, but I must confess
that I do not think that this "indispensable preliminary," however necessary it may be for the thorough issue of what the section enacts, can exist unless it is expressly provided for; and I confess, myself, that I a little wonder that Mr. Justice Little, who does not scruple to make the Act entirely inoperative as to forfeiture which it manifestly intended, because of a verbal omission should pass over the verbal omission-almost a more important one-of the right to board and search, and say that they must exist as an "indispensable preliminary" to this right of seizing.
I cannot help thinking that the interference with private rights which is affected by search upon suspicion is one which cannot be enacted inferentially, and the fact that it has been expressly provided in the Imperial Customs Laws and Fisheries Acts, and many other inland Acts which enact it, shows, I think, that this is the view taken of it by the Imperial Parliament.
I venture, therefore, with submission, to suggest that the point for the Government in this matter is to be thoroughly advised as to what is whether under the Bait Act and its Amendment Act alone, or it may be, some other Act-the precise statutory position of the Government of the Colony, as to boarding and searching vessels offending under the Bait Act.
If the Government are advised that, notwithstanding the absence of express provision, there is an inferential power sufficiently enacted to take such action as boarding and searching; or if it should prove to be the case that this power is sufficiently enacted in any other statute, so as to aid the Bait Act, then I should feel no hesitation whatever in saying that (unless there is any treaty or convention to the contrary) there is nothing contrary to International Law in boarding and searching vessels in the
circumstances referred to.
"
There is one argument which may be used with regard to the action of the Colonial Government, and the contention on the part of France, that vessels may only be seized in the territorial waters, when there found committing an offence en flagrant delit that whilst the offences of "hauling," "catching," "taking," and "shipping," are isolated acts which can be visibly seen at the time of seizing, the offence of " conveying ' is a continuous act, and may be said to be one en flagrant delit so long as the vessel is in the waters, and it might be contended that as this continuous act might be going on at any time, a vessel seized upon suspicion is so visited and seized en flagrant delit. I do not do more, however, than just call attention to the point, because the letters from the French Government lay stress on the view that vessels can only be taken en flagrant delit, and possibly, the Government may think it right to have advice on it;
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but I do not mean to go so far as to suggest that it could be substantially used as an argument in favour of the right of search of any vessel, if that right of search did not otherwise exist.
With regard to the second question put to me by the Board, I think that catching bait within the three-miles limit would certainly be fishing; but the present question does not, so far at least as we know, arise or impinge upon any question with regard to the Fisheries Acts, which, although they probably do exist in the Colony, we are not told anything of. The Fisheries Acts of the United Kingdom do not relate to the fisheries of the Colonies.
(Signed) C. J. FOLLETT.
November 12, 1889,