23,519.
PUBLIC RECORD OFFICE
C.O.
Reference :-
885
13 PUBLIC RECORD' OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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No. 166,
(NEWFOUNDLAND.)
FURTHER MEMORANDUM BY THE SOLICITOR OF CUSTOMS ON THE LAW in ENGLAND AS TO THE BOARDING AND SEARCHING OF FOREIGN VESSELS SUSPECTED OF ANY INFRINGEMENT OF THE LAW WITHIN OR WITHOUT THE THREE-MILE LIMIT.
THE third communication from the Colonial Office now referred to me contains an Act recently passed by the Newfoundland Legislature repealing both the Bait Act and its Amendment Act, and re-enacting, in the main, the provisions of those two Acts, with amendments and additions.
The chief part having regard to what I have said in my previous Memoranda, is that the attention of the authorities has apparently been called to the defect which I noticed, viz., that, so far as my information went, there was no express enactment of the power to board and search boats or vessels, and that unless there was such an enactment the legality of doing so was very questionable.
The power to board and search is now expressly enacted in this further Act (and is contained in section XIV.), and extends to officers of the descriptions mentioned if on board "any vessel employed by the Government": and this meets (so far at least as express enactment goes) the objection taken by M. Jusserand that the searching vessel ̈ was required to be one of a "caractère militaire."
I do not think I need touch upon the other provisions of the Act. except, perhaps, so
far as just to mention that the power for the magistrate to order the forfeiture of a boat or vessel seized, the deficiency of which was laid stress upon by Mr. Justice Little, is now expressly enacted by sections X. and XVIII.
I am very reluctant to be critical on this Act, which in most respects is very complete, but there is one point to which I slightly alluded in
my first Memorandum
of the 12th November, and to which perhaps I should draw attention.
I said in that Memorandum that if it had not been for the Amendment Act of 1888 (51 Vict. c. 9.), which made a distinct reference to exportation from the territorial waters as being exportation from the Colony, I should have just questioned whether the provisions of the Bait Act itself referred to the territorial waters, or went beyond the limit of "land," that is, of the actual Colony itself, which is low-water mark, and the waters inter fauces."
I said this on this ground-because, although the section specifying the offences under the Act extended them to acts done" from, on, or near any part of this Colony or its dependencies," which probably would be held to include the territorial waters yet that the reference immediately following to “ bays, harbours, or other places
therein "that is to say, the waters "inter fauces"-would seem to cut down the wider interpretation to land including water between high- and low-water mark, and the proprietary waters as distinct from the territorial waters.
If the words "from, on, or near any part of this Colony or its dependencies ' included the territorial waters, they would include everything within those waters, and there would be no necessity to mention the bays, harbours, or other places therein."
I observe that precisely the same words as to offences are re-enacted in section I. of this Act, but that the Amendment Act of 1888 is repealed, and I do not find in this new Act any reference at all to the territorial waters; and, without wishing to press the point, I think that this is to be regretted.
It would have been better if there had been a distinct mention of the territorial waters, and especially in section XIV., the new section as to the right of search.
As will be seen in my first Memorandum, the sections in our own law, and in the Fisheries Act, stato-especially the latter Act-most distinctly where and within what limits the right of search may be exercised; whereas in this section XIV. this is not expressed at all.
It is quite clear that the right could not be exercised indefinitely; and, if any real argument can be based on what appears to be a want of explicitness in the first ection, there might be a defence raised on the ground that the right of search is limited to the waters "inter fauces."
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I do not urge at all strongly that this would be so; but I think it is somewhat to be regretted that the Act does not contain a definite statement that the ground on which
A 57805.-257. 25.-12,89.