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be favoured with any general observations which we might have to offer on the present aspect of the case.
In obedience to your Lordship's commands, we have the honour to
Report
That, upon the best consideration we can give to the memorandum of Mr. Carlisle of the 29th October 1890, we are of opinion that his advice contained as to the procedure to be followed should be accepted and acted upon, subject to this qualification, that the appeal should not be abandoned unless the application for a prohibition is entertained and considered upon the merits, as upon the information before us it is by no means clear that there is ground for prohibition; and it may be that the question is one which arises on the merits and which the Court had jurisdiction to entertain.
The Marquis of Salisbury, K.G.
We have, &c., (Signed) RICHARD E. WEBSTER.
EDWARD CLARKE.
24758.
No. 196A. (CANADA).
REPORT of the SOLICITOR of CUSTOMS, dated 8th December 1890.
THE question referred to me on these papers is, whether vessels lying outside the three-mile territorial limit are liable to seizure for offences committed by boats belonging to them within such waters.
I have not, in my 13 years' experience, had to advise the Board of Customs on any such case, nor can I trace any such case advised on by my predecessors.
But I will state my view, so far as I can do so, as to what I think the position would be, if such a case occurred.
To begin with, I think I may state that, although the three-mile limit has not always been regarded as the limit of Customs seizure, and although there have, under the Hovering Acts, been provisions for seizure under them, even of foreign ships, outside those limits, sucli enactments have either disappeared from our laws, or become obsolete, and that no foreign vessel is in fact liable to seizure otherwise than for offences which she commits, within the now recognised limits of territory, of the gun-shot three miles. This, however, does not prevent a veasel being seized outside those limits, if she is fugitive from an offence committed by her within them, either in actual chase, or in circumstances equivalent thereto.
This, which I think is the correct Customs law, keeps itself well within the International position that, except as to vessels in flagrante delicto, or fresh from offences they have themselves committed, foreign vessels are not, as a rule, seizable on the high seas outside the territorial waters.
But then, the question arises how does this stand, if the vessels, while keeping them. selves outside the territorial waters, cause their subsidiary boats to offend therein.
There is no express provision in the Customs laws as to this; it has not apparently been thought of, nor, as I have said, can I call in any instance of practice to aid the con- sideration of the point.
Non-seizure on the high seas beyond the territorial waters is an international immunity between states at peace. The question is (I am writing only as to revenue; beyond that the Law Officers have laid down the law), how far could this be upset by such action as the illegal use, of subsidiary boats within the waters ?
It is, I believe, the accepted view that (with reservations) no international law is absolutely binding on sovereign states if their municipal law clearly stands to the con- trary, and such a municipal law is a matter publicly known.
I think, therefore, that if our Customs laws did enact that subsidiary boats in the waters should be deemed to be the vessel to which they belong, there would be no breach at all of international law in such an enactment, even although it might invade the usual immunity of foreign ships on the high seas beyond the "waters."
""
Then, however, comes the last question, how will this be if this point is not so enacted ?
As I bave said, it is not so enacted in our Customs law, and I do not gather from the papers that it is shown to have been contained in the Russian Imperial Edicts applicable
to the Province of the Amoor.
If not enacted, however, is it implied on grounds of sense?
I should myself say that this was a very doubtful point, and might be argued either way with much force."
On the one hand, it has been emphatically decided that jurisdiction in the territorial waters must be legally and plainly enacted; and our law only, totidem verbis, condemns the actual offending "vessel or boat," subsidiary boat, is not the boat itself, but the vessel which orders it to commit the On the other hand, the offender, in the case of a offence which it does commit, and there is the maxim of law and common sense that qui facit per alium facit per se. that this is a consideration suitable rather to procedure for a personal penalty or punish- On the other hand again, however, it may be argued ment than the drastic remedy of seizure of property, forti manu, which should be confined to the actual thing named in the law. and her boats are not in the eye of the law (as a general rule) one entity (as a ship and And it is to be remembered that a ship her "tackle, furniture, or apparel" are), but, that they are distinct, and have been so held in various cases, and so expressed in marine documents.
On the whole, I think that in such a case, if it occurred in a matter of revenue, while
I should have some grave doubt how to act, I should be disposed to say that, as our
E 65459. 25,-1/91. G. 20. WL. 19076, E. & S.
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