CO885-(10-11) — Page 670

PUBLIC RECORD OFFICE

Reference :-

T །། ། ། mmimmimi.C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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As regards the latter part of the section to which our attention is called, viz., that giving the Attorney General the superintendence of penitentiaries and the prison system of the Dominion, we understand this provision as confined to prisons, &c. of the Dominion of Canada, as distinguished from those of the several Provinces making up and forming that Dominion, and in this view we think that the 92nd section is not interfered with.

We advise that the Act may for the present be left in operation, but that the attention of the Government of Canada should be called.to. the remarks we have submitted to your Grace, with a view of obtaining an explanation as to what is intended to be the scope and meaning of the first branch of the section, and what class of Provincial laws it is intended to refer to, and also whether the interpretation which we put upon the latter branch is that adopted by the Colonial Government.

We have, &c.

(Signed) JOHN B. KARSLAKE.

RICHARD BAGGALLAY.

His Grace the Duke of Buckingham and Chandos,

&o.

&c. &o.

12013.

MY LORD,

No. 534.

(GIBRALTAR.)

ADVOCATE-GENERAL to FOREIGN OFFICE.

Temple, October 27, 1868. I AM honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 17th instant, stating that he was directed to transmit to me, together with the previous papers, a letter from the Colonial Office, enclosing a copy of a Despatch from the Acting Governor of Gibraltar, furnishing further explanations with reference Oct. 10. to the points adverted to in my report of the 8th August," with regard to the boarding

of the Gibraltar schooner "Fanny" by a Spanish revenue cruizer, and to request that

I would take this case again into consideration and furnish your Lordship with my opinion thereupon.

In obedience to your Lordship's commands I have the honour to

Report

That upon a careful consideration of the report made by the lieutenant and com- mander of Her Majesty's gunboat "Skylark" to the senior naval officer on 16th September 1868, and of the subsequent report made by the senior naval officer to his Excellency the Governor of Gibraltar on 19th September, I see no reason to alter mý was navigated was calculated to opinion that the manner in which the "Fanny awaken the suspicions of the Spanish guarda costa as to the destination of the Fanny" and to justify their boarding her. The commander of the "Skylark" says,

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The

It certainly appears even after allowing for baffling winds and calms, which do "vail during easterly winds in the vicinity of the rock, that the Fanny was an

unusually long time in arriving at the place where she was first boarded.” senior naval officer who is disposed to think it possible that the "Fanny" might have been prevented by baffling winds from making further progress on her course to Oran before she was boarded for the first time, says "the statement which makes the Fanny' only sail half a mile in one hour, the time which elapsed between the first and "second boarding, requires explanation."

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I am therefore not disposed to think that this case, so far as the conduct of the guarda costa is concerned in boarding the "Fanny," calls for any further action on the part of Her Majesty's Government than has already been taken by his Excellency Sir R. Airey; but with regard to the further question raised by the senior naval officer as to the right of the Spanish guarda costa to search the "Fanny " at all "as she was "not at any time more than four miles distant from Europa Point, and consequently was in British waters or on the high seas," and the said view which the Acting Fanny" may possibly have Governor of Gibraltar has expressed, that although the been rather more than three miles from Europa Point, yet at no time was she within even the six miles from their coast claimed by the Spaniards as their fiscal zone, I am unable to form an opinion upon the matter of fact without further information as to the precise locality where the vessel was boarded and its bearings in regard to the Spanish coast. With regard, however, to the question of law, I may observe that a

British waters and the high seas great distinction must be made between regards the action of the Spanish guarda costas, and that, whilst under no circum- stances are they entitled to search any merchant vessel within British waters, they would be justified under the comity of nations in searching a foreign vessel on the high seas if she was within six miles of their coast and they had reasonable grounds for believing that she was bound to a Spanish port or meant to land her cargo anywhere on the coast of Spain.

The Lord Stanley,

&c.

&c.

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I have, &c.

(Signed) TRAVERS TWISS.

AS

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16278,-679:

25.-5/86.

* No. 528.