CO885-(13-15) — Page 139

22,576.

PUBLIC RECORD OFFICE

C.O.

Reference :-

• 885

13 PUBLIC RECORD 'OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

No. 163.

(NEWFOUNDLAND.)

MEMORANDUM BY THE SOLICITOR OF CUSTOMS, ON THE LAW IN ENGLAND AS TO THE BOARDING OR SEARCHING OF FOREIGN VESSELS SUSPECTED

OF ANY INFRINGEMENT OF the Law WITHIN OR WITHOUT THE THREE-MILE LIMIT.

THE power

for officers of customs to go on board and search vessels, whether foreign or British, is contained in section 182 of the Customs Consolidation Act, 1876, and is as follows:-

Any officer of customs or other person duly employed for the prevention of smuggling, may go on board any ship or boat which shall be within the limits of any port of the United Kingdom or the Channel Islands, and rummage and search the cabin and all other parts of such ship or boat for prohibited or uncustomed goods, and remain on board such ship or boat so long as she shall continue within the limits of such port."

This section was contained in several previous Customs Acts, and, indeed, I think I may say that a distinct power to board vessels and to search therein, has been a matter of enactment always in the Customs laws.

To explain, however, the exact extent of the section, it is necessary to dwell a little on the meaning of the word "port" therein contained.

-

In common parlance this word is often used

as synonymous with "haven,"

harbour," or "estuary," at some particular place. It is so used in the great case,

The Queen v. Keyn," in relation to the" Franconia," quoted by Mr. Justice Little,

the appellate judge in Newfoundland, in the present papers, and which is the ruling

case as to the law in relation to the territorial waters, and which led to the passing of

the Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict. c. 73).

In Customs legislation, however, the word "port" has always meant something considerably beyond this.

The whole coast of the United Kingdom is, by the joint effect of the Customs laws and the Treasury warrants made thereunder, divided into ports so that, without regard to whether there is a harbour or a haven, there is not a mile of coast, however near to a harbour or far from it, which is not part of a" port." The word, therefore, in Customa language, includes this, and it has always been administered to include some extent of water seaward; and all warrants (roughly speaking for the last half century) prescribing the limits of ports have, in conformity with the view which of late years has obtained with regard to territorial waters, expressed that the ports,"extend seaward to a distance of three miles from low water.'

The power to search, therefore, resting on this section, extends to all the coast-line (besides waters inter fauces) and three miles out to sea, taking, in the case of headlands, three miles from the points, and the power covers all vessels, whether British or foreign.

In the whole question which arose as to the "Franconia," there was, among many varieties of opinion no doubt expressed, even by the majority of judges who were against the jurisdiction in that case claimed by the Crown, as to a power to enact the search of the character above mentioned.

Whether the territorial waters were an absolute "dominion" and "

property," just

as the land of the United Kingdom is, as some, even French, jurists have said, or a qualified jurisdiction only, there was no doubt expressed, and every jurist quoted (including several French) agreed that, for revenue purposes and for protection of the coast and purposes of public safety and utility, such powers were exerciseable.

The result of the decision, however (to pass for a moment from these special points to general jurisdiction), was shortly this: that while, on the one hand, the jurisdiction was a great deal more than one merely for specific purposes, and was (subject to the right of free passage and navigation by all vessels therein) a complete territorial dominion even against foreign ships; yet, that as these waters are not part of what was anciently called "the Realm," but are " high seas as distinct from "land covered with water" between low and high water mark, which is part of each county; whatever powers the Government of the country decided to exercise therein, must be

A 57014-37. 25.-11/89.

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