CO885-(13-15) — Page 140

PUBLIC RECORD OFFICE

Reference :-

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C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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

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enacted by the legislature of the country, and would not, in any case, arise, either by common law or by the argument ab inconvenienti, that whatever ought to exist must have been intended to exist, nor in any way, but by express enactment.

As above stated, with regard to the Customs officers and revenue this is expressly stated, and the power given by the section extends beyond revenue to any "prohibited goods"; and I think having regard to section 202 of the Customs Consolidated Aot 1876, and the reference therein to any other Act whereby officers of Customs are authorized to seize, that it would probably extend to any action under any Act by which officers of Customs are authorized to work.

With regard to fishing vessels, and the question of fishery, this industry is expressly mentioned in the judgments of several of the learned Judges, and in quotations from numerous jurists, as one of the purposes for which, by almost unanimous consent, any country can exercise jurisdiction over the territorial waters around it; and in the Fisheries Acts of the United Kingdom of 1868 (31 & 32 Vict. c. 45) and 1883 (46 & 47 Vict. c. 22) there is the following provision —

•

"For the purpose of enforcing the provisions of this Act, and of any Order in Council under this Act, or under the Sea Fisheries Act, 1868, as amended by this Act, a British sea-fishery officer-may, with respect to any sea-fishing boat within the exclusive limits of the British Islands, and with respect to any British sea-fishing boat outside of those limits, exercise the following powers:-

(1.) "He may go on board it.

(2.)

"He may require the owner, master, and crew, or any of them, to produce any certificates of registry, licences, official log books, official papers, articles of agreement, muster rolls, and other documents relating to the boat or to the crew, or to any member thereof, or to any person on board the boat which are in their respective possession or control, on board the boat, and may take copies thereof or of any part thereof.

(3.) "He may muster the crew of the boat.

(4.) "He may require the master to appear and give any explanation concerning his boat, and her crew, and any person on board his boat, and the said certificates of registry, licences, official log books, official papers, articles of agreement, muster rolls, and other documents, or any of them.

(5.) "He may examine all sails, lights, small boats, anchors, grapnels, and fishing

implements belonging to the boat.

(6.) He may seize any instrument serving only or intended to damage or destroy fishing implements, by cutting or otherwise, which is found on board the boat or in the possession of any person belonging to the boat.

(7.) "He may make any examination or inquiry which he deems necessary to ascertain whether any contraventions of the provisions of this Act, or of any Buch Order of Council as aforesaid, has been committed, or to fix the amount of compensation due for any damage done to another sea-fishing boat or to any person or property on board thereof or belonging thereto, and may administer an oath for such purpose; and

(8.) "In the case of any person who appears to him to have committed any such contravention, he may without summons, warrant, or other process, both take tho offender and the boat to which he belongs, and the crew thereof, to the nearest or most convenient port, and bring him or them before a competent Court, and detain him, it, and them, in the port until the alleged contravention has been adjudicated upon."

This provision, it will be seen, sets out very distinctly the power to board and seize, within the "exclusive limits" of the British Islands, as regards foreign ships, and those "exclusive limits" are, by reference to the Acts and the Conventions which they rest upon, shown to be the usual three miles.

The position, therefore, is that there is full, statutory power for the Customs officers to search foreign vessels for all purposes under the Customs administration, and foreign fishing vessels for the purposes of the Fisheries Acts, within the three miles limits, as being part of the territorial waters of the United Kingdom, and part of the prescribed limits of the ports set out according to law. But it may be said that whatever may be our statutory law, and whatever may be the decision even of one of the highest Courts of the Realm, it may still be contrary to international law, as the French Government urges that it is, to exercise this power. It would be very presumptuous of me to urge anything in support of so great a decision as that in the case of the" Franconia," and the Act which it led to; but I can scarcely forebear from remarking that, while one French jurist calls the power over territorial waters

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a dominion just as on land, and no other that I have seen quoted denies the right to enact precautions of this character, it is difficult to see that (where Treaties do not forbid it) there can be anything but a clear right, internationally to make such

enactments.

With regard to the question of searching beyond the territorial waters, which the letter from the Colonial Office also inquires about, I think it stands as follows:-

The right to some dominion over the waters surrounding a country with seaboard was at one time very indefinite. It cannot be said to be entirely definite now, though there is a consensus that it is not less than three miles; but until recent years, comparatively speaking, claims of the kind were very vague and extensive, and went so far as 100 miles or even further, by this country, and including what were called

the narrow seas ,,

around the British Islands.

Consequently in the last century in the reigns of the first three Georges, when some rather stringent laws were being passed against what was called “hovering ' coast the power to deal with foreign vessels suspected of this offence was carried to on the a distance of two, three, or even four leagues from low-water mark. no longer exist, and in the present Customs law the only remnant is to be found But these Acts in the beginning of section 179 of the Customs Consolidation Act, 1876, which includes amongst vessels liable to that section, and to forfeiture under it, certain foreign vessels if found within three leagues of the coast of the United Kingdom.

This provision, however, although it was continued in the Customs Consolidation Act of 1853, and in the present and more recent one, must, I think, be now regarded as a dead-letter: it has never been acted upon since the recognition, between nations, of the three-miles limit; it would certainly be a most indiscreet thing to act upon it; and, moreover, as the power to search vessels under the section quoted at the head of this report (section 482 of the Customs Consolidation Act, 1876), is confined to those within the limits of a port in the United Kingdom, it is exceedingly questionable, however liable these foreign vessels at the greater distance might be to forfeiture, whether there could be any legal going on board them, the express provision for that purpose having disappeared with the remainder of the law concerning them.

I am not asked, by the reference to me, to apply my answer to the case of the vessels dealt with by the Newfoundland Government, but the letter from the Colonial Office asks for any observations which the experience of the Commissioners of Customs may enable them to offer" with regard to the contention of the French Government; and so I venture to go further than the mere question put to me, and to refer to the special facts in the Colony, since, as it seems to me, the position there really brings out what is the main point in the whole case.

The position appears to be this :-

(a.) It is certainly not contrary to international law to enact search for revenue

and fishery purposes and probably not for much more, in territorial waters. (b.) Possibly, for revenue purposes and some others, it is legal, internationally, to

enact it further, though contrary to the present custom of most nations.

(c.) But, in any case, it is necessary to enact it. It does not arise by common law,

nor by the principle of supplying law, ab inconvenienti. Indeed the right to search private premises is a thing which generally does not exist without express enactment, even on land. Houses may be entered by the police, by virtue of common law, in such cases as "felony," but, subject to that, and one may say, speaking generally, in all statutory offences there is no power to enter and search upon mere suspicion, unless the Act of Parliament expressly enacts it. It will be found under the Licensing Acts, under the Explosives Acts, 1875, under the Public Health Act, and under the recent Merchandise Marks Act, and many others; and in all these cases it is enacted, in so many words, that the entry may be made; the authority by which the order may be given; and the way in which it may be done.

I should not like to speak anything more than suggestively on a point not actually referred to me; but I do not think it is going too far to say that (subject to what I have said as to felony) there is no power to search private property on suspicion in the absence of express enactment to that effect. The question, therefore, is (and I venture to think that it is the question in the whole case) is this so enacted' in the Colony of Newfoundland?

Of course it is quite possible that there may be Acts of the Colonial legislature, or a general Fishing Act which amply contain this power; but I am rather disposed to doubt whether the action complained of in this matter could be held to be done under

A 57014.-37.

A 2