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PUBLIC RECORD OFFICE

Reference :-

C.O. 8

885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

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including, by express mention, the fisheries of the country of which the waters form a territorial part. There is one jurist who says, upon this point, that" all publicist s and treatises agree on it"; while another says, "As incidental to this jurisdiction, the "State is entitled to extend measures necessary for the protection of its territory "and its laws, to these portions of the sea, and to make regulations of police with "reference to navigation and fishing, and other matters; but that it is not entitled, "in time of peace, to deny the right of passage, or the use of these waters for

navigation."

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This is the distinction between the two things; and if regulations had been properly made, or if indeed they do exist by proper legislation in the Colony of Newfoundland, for the searching of vessels which in passing through may interfere with the law there existing as to fishing, I do not think that it could be sustained that action based upon such legislation would be contrary to any international law,

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There was a French jurist,* of some position in the last century, who distinctly states that vessels navigating within the territorial waters are liable to search and forfeiture. He says:-"On est suspect de commerce clandestin et prohibé, c'est pourquoi on est sujet à être visité, et même à voir confisquer les marchandises et la navire."

This admission is very strong, and, at first sight, may seem to imply that vessels are subject to search even without legislation; but I do not read it as absolutely meaning to go so far as that, and, having regard to the view recently taken so strongly that anything dono in the territorial waters must be enacted, I am sure it would not be so regarded now; but it does seem rather remarkable that a Government should now put forward search of vessels passing through the territorial waters as a gross breach of international law, when a distinguished jurist of their own country has spoken of the liabilities to which such vessels are rightly subjected in such strong terms as the above.

It is possible, of course, that, in referring to the Treaty of the Hague, Monsieur Jusserand may mean to suggest that the words of Article II "Tho present Article shall not in any way prejudice the freedom of navigation," were intended to emphasize a freedom of navigation even more, it might possibly be, than it existed before, so far as regards the signatories to that Convention; and that the conforming to the police regulations which is mentioned in the Article does mean only an abstention from any act which can be detected as being done in flagrante delicto; or, in other words that freedom of navigation means freedom to the full extent of the word-absolute freedom. free from any check or stoppage whatsoever unless caught in flagrante delicto.

I think, however, this would be a very overstrained interpretation of the paragraph, and it is perfectly evident that those who represented this country could not have intended such an interpretation, because, at that very time, there was in existence the Fisheries Act of 1868, stating that all foreign fishing vessels within the territorial waters of the United Kingdom were liable to search; and, since the Convention, this enactment has been repeated in the Act of 1883.

The sentence is, as I read it, merely a saving clause to the effect that no exclusion laid down by the Convention shall affect the general existing position of international law.

"Freedom of Navigation," moreover, in the common sense view of the term, means (and it is so mentioned over and over again in the judgments in the case of the Franconia") simply the right of passage; it means navigation free of any absolute check, in open waters, as opposed to mare clausum. The mere visite or search of a vessel even if she is passing directly through the waters is no

denial of passage", and, so far as mere progression is concerned, would not be any great impediment to a vessel if she is innocent; while, if she is guilty, it would simply be what she deserved. There is, no doubt, a distinction recognized between merely passing ships and ships which are called "commorant" but it was clearly held as the view that passing ships were liable like others, and, indeed, if that were not so, offences such as that in the case of the "Franconia" (which was merely a passing ship) would not be subject to the law as they are now, since the passing of the Territorial Waters Jurisdiction Act. fully intended to be.

That it would be wise and prudent, and right, as a matter of international courtesy, not without good reason, to search and examine a vessel which was merely passing through the waters, is no doubt, the caso; but in international law, such a vessel is, I venture to submit, liable equally with those which are called "commorant' vessels.

The vessels " Amazone " and " Virginie" moreover had undoubtedly been at anchor.

• Merlin.

† See quotation in full in Report on the other papers.

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If this is correct and the right of search, if and when duly enacted, is not contrary to international law in respect to vessels either passing through or commorant in the territorial waters, then it follows that there is no doctrine on the subject of flagrant delit of the character suggested by Monsieur Jusserand.

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With regard to the second point-the character of the vessel carrying the officer- the article to which Monsieur Jusserand refers is Article XXVI., which says

superintendence of the fisheries shall be exercised by vessels belonging to the "national navies of the high contracting parties. In the case of Belgium, such vessels may be vessels belonging to the State commanded by captains who hold commissions."

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From this article Monsieur Jusserand draws the conclusion that no interference can be made with foreign vessels in the territorial waters (and I do not gather that he confines this to fishing vessels, but applies it to all vessels whatever) otherwise than by officers carried on board vessels of a caractère militaire, or to quote the words of the article," belonging to the national navies.”

I cannot read the article as intending anything of the kind. The reason why vessels belonging to the national navies are mentioned in the article, is because the fisheries, the superintendence of which is to be exercised by vessels of the national navies, are the particular fisheries of the North Sea to which the Convention refers, where the cruisers of the different countries would naturally be cruizers of the national navies; but this special provision could not be held to limit in any way the kind of boat which may be used for patrol around the immediate coasts of any State, party to the Convention, and certainly could not be so held by this country, since not only are there some cruisers which are not (like the coastguard)* part of the national navy, but are in the Customs' service; but it is distinctly stated by sections 180 and 181 of the Customs Consolidation Act, 1876, that the visitation and chase of ships or boats may be made by any vessel or boat in Her Majesty's service, or in the service of the Revenuc, by hoisting the proper pendant and ensign, and the second section goes even so far as "any vessel or boat duly employed for the prevention of smuggling having a proper pendant and ensign hoisted."

M. Jusserand says that special mention of the Belgian cruizers in Article XXVI.—or, at least, I thus read his contention-is a proof that it is necessary to specially mention eruizers which are commissioned only, and not in the national navies, in order to give them any right in this direction. I regard, however, the mention of the Belgian cruizers as being one specially necessitated in the case of the North Sea, only from the fact that there is no national navy of the Kingdom of Belgium, and that as the exercise of superintendence in the North Sea as regards most of the contracting parties was to be by ships of their navies, it was necessary, in the case of Belgium, to make special mention of the fact that the vessels of that country would not be vessels of the navy, but would yet be vessels belonging to the State and commanded by captains holding commissions from the State.

In the instances in Newfoundland, it appears that the seizing officers were on board a vessel which is commissioned by the Colonial Government for the purpose of the Bait Protection service; and there is no reason to doubt that it carried the proper pendant and ensign, and it had on board officers duly commissioned for the service. do not think there is any real ground for objection on this account; but of course there may be some provisions in the Colonial Customs Acts which may bear upon that point.

C. J. FOLLETT.

14th November, 1859.

(Signed)

* It is only recently (for the last 30 years), indeed, that the Coastguard were "National Navy.”