| PUBLIC RECORD OFFICE
C.O.885
Reference :-
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
13 PUBLIC RECORD OFFICE, LONDON
2
That Mr. Meade was to request that we would be good enough to take the papers into consideration, and to inform your Lordship-
(1.) Whether, in our opinion, the powers of legislation conferred upon the Dominion Parliament by the British North America Act, 1867, authorised that Parliament to amend or repeal, so far as related to Canada, an Imperial Act conferring privilege- within Canada which the Parliament of Canada thought it advisable, in the interess of the Dominion, to discontinue or alter.
(2.) Whether the Queen had the power to assent to the particular Act now in question; and that Mr. Meade was further to request that we would favour your Lordship with any observations which the papers submitted to us appeared to demand.
We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to~~-
Report
(1.) That in our opinion the powers of legislation conferred upon the Dominion Parliament by the British North America Act, 1867, do not authorise that Parliament to amend or repeal, so far as relates to Canada, an Imperial Act conferring privileges within Canada.
(2.) That in our opinion Her Majesty should withhold her assent to the particular Act now in question.
The Right Hon. Lord Knutsford,
&c.
&c.
We have, &c., (Signed)
RICHARD E. WEBSTER. EDWARD CLARKE.
1377.
No. 168A.
(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 question now asked by Lord Salisbury is :-" What is the actual practice in this country as to exercising the right of searching or detaining Foreign vessels by ships "other than those of a public character?" and it is suggested that not sufficiently state the practice on this point, and that "the question has not been my memoranda do "answered whether in fact the right of search has been exercised by officials on board "of commercial ships in this country."
My reply is that I did not deal with this precise question as to Commercial ships, because I did not take it as arising on the papers, nor, indeed, as one thought of in practice.
The vessel used for the purposes of detention in these cases was the "Ingraham," a vessel in the service of the Colonial Government, and not a Commercial vessel. The distinction on which, as I thought, the French Government laid stress was that for a vessel to be legally employed in such an act as that of forcible search, it must be one of a" caractère militaire"; and I read this as meaning in the "Naval " employment of a Government, as distinct from any other Government employ.
I almost still think that this is what the French Government mean, and probably they are moved to attach importance to it from the fact, which I believe is the case, that all Revenue cruisers, everywhere, in their service, are borne on their Navy. Unless indeed they meant this, their argument as to the Belgian ships, and the special mention of them in Article XXVI. of the Convention of the Hague, would have no force.
M. Jusserand referred to that Article as showing that ships of the special character of the Belgian cruisers in the North Seas required express International Agreement in order to enable them legally to act as searching and seizing vessels, but the Belgian cruisers are Government vessels although, as there is no Belgian Navy, they are not vessels of a Navy.
"
To approach, however, the question of how far there is or could be search by Imperial Customs Officers by or from Commercial vessels, iny answer is as follows:- (a.) When a vessel has arrived at or is inside "the boarding station'
(and in all our ports the boarding stations are precisely marked places) a of a port Customs Officer in proper uniform may go on board, and claim to go on board by whatever means of water carriage he arrives, whether, as is usually the case, in the Customs boat, or in any other boat, or, as is frequently the case, in the pilot boat or a tug. (b.) Outside or away from the boarding station, only a vessel carrying the Government pendant and ensign can order an arriving or passing ship to stop or can fire on her if she does not stop-but such a vessel need not be one of the Royal Navy; she may be, and.in places not infrequently is, one in the Customs Service only and carrying the blue ensign and Crown. must, however, be in the Government Service, either by ownership, or by She temporary hire, and authorised to carry, and carrying, the pendant and ensign as such. There is, on the other hand, no necessity that she should be of a caractère militaire, or a man-of-war-except so far as that, without a gun, she might act without complete effect. Her sphere of action extends to three miles from the usual low-water mark of the line of the shore, treating waters within headlands, not exceeding a moderate stretch, (put, as a rough rule, at 10 miles) as home or land waters.
(c.) Outside or away from the boarding stations I do not think any idea ever arises of using Commercial vessels for purposes such as those indicated. How far in such a position, if a Customs Officer was on board a Commercial vessel, and came alongside of a ship within the zone, he could claim to board by exhibit- ing his uniform, is a question on which I have never had to advise and one which might be argued, but I am clear that no merely Commercial vessels outside the boarding stations could, by the fact only of having a Customs Officer on board, order any vessel, British or foreign, to stop and be searched, and no such vessel could exercise the compulsion of a shot.
A
61207-6
25.-2/90.