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The details on which the principle is worked out require exa- Chapter I mination. First, who may pursue? Nothing is more certain than that the concession in favour of the aggrieved State does not in- pursue. clude seizure on suspicion, even though the suspicion that the ship has offended be justified by the seizure and subsequent search. Except in the case of piracy, in which all States are assumed to be aggrieved, such a seizure violates the fundamental principle on which the freedom of the sea rests. We have therefore the first and essential element of "hot pursuit": certainty that the offence has been committed. But from this it might with some reason be contended, that the pursuit should only be conducted by one who has actually seen the offence committed. Such a strict reading of the rule would deprive it of half its benefit ; and the better opinion seems to be that the pursuit may be undertaken by a vessel whose captain has received precise and reliable information on which he can act with certainty. Neverthe- When pur less he must start on the pursuit as immediately as it is possible begun. on receipt of the information: for what is allowed is not "pursuit" merely, but "hot pursuit ".
The difficulties which must inevitably arise in testing whether the conditions have been satisfied by any particular seizure are obviously very great, and may be illustrated by two concrete cases. A cruizer receives information from the coast-guard of a distant station that a foreign ship has been seen raiding some seal rookeries, and a description of the vessel is given so that the cruizer can act with certainty. The seizure, even if the ship got away on to the high sea, would probably be justified. But suppose that the information was vague and indefinite, as that "some foreign vessels had been raiding", and no precise description of them was given : it is impossible to contend that a seizure on the high sea of a vessel pursued at random, on the off-chance that she was one of the raiders, would be supported; even though tangible evidences of participation in the raid were found on board.
Unless the principle, which contains in itself no limit of space. or time, is strictly hedged in as here suggested-as to the nature of the offence, the time within which, and the person by whom, the pursuit may be undertaken-the result would be a claim of an almost unlimited jurisdiction over foreign ships on the high sea for territorial offences; a claim which, it is cardinal to the prin、
suit to be
Chapter I ciple to concede, would be wholly unwarranted. But not only this from its nature the principle admits the rule that under ordinary circumstances no such jurisdiction exists at all: its claim to recognition is based exclusively on the fact that the circumstances are extraordinary, and demand an extraordinary remedy.
Rescue of prisoners.
Yet once the principle is admitted, it cannot be limited to revenue and fishery laws: its existence as a legal principle must depend on the possibility of its application to all cases in which the fundamental conditions are satisfied.
Concrete examples of the principle in action are naturally of rare occurrence: but the case already hinted at, of a ship participating in the rescue of prisoners may be taken as illustrating the extreme limits of its application. We may imagine a foreign ship landing part of her crew for the purpose of effecting the rescue of some political prisoners. If, as a matter of fact, they are rescued and taken on board, there can be little doubt that pursuit on to the high seas would be justified, and that if the necessity arose the ship might be fired into. Such a case seems abundantly covered by the principle of hot pursuit.
The difference between this and the breach of revenue or fishery laws is that there is no seizure provided for by law, and therefore the pursuit cannot end in confiscation. The case indicates some details which are important. It is suggested that the pursuing ship may take all such measures as are necessary to make the pursuit effective: such as, firing across the bows, and afterwards into the ship if she is not hove to, and seizure if it is found necessary to bring her into port. But it would seem to follow that the duration of the seizure cannot be longer than is necessary to attain the object of pursuit.
It is doubtful, if the ship were hove to and the prisoners handed over, whether anything more could be done to the ship, unless, in effecting the rescue, she had committed some breach of the laws, such as going to sea without her clearance. The case, not being based on a breach of any specific law, carries the principle into delicate ground, more especially as regards details. It seems fairly clear, however, that while on the one hand, there is no law to appeal to, and therefore no action possible before the Courts if the ship is brought into harbour, yet, once the pursuit is justified, everything else must be justified which is necessary to
make it effective, even to the extent of bringing her into harbour Chapter I if the captain declines to deliver up the prisoners. But the prisoners recaptured, her offence would be at an end, and, no process being possible, there does not seem to be any further ground on which she could be detained.
It does not seem necessary to elaborate the obvious distinction between the case of rescue, and the ordinary case already discussed where a prisoner escapes on board a vessel proceeding
The above illustration suggests another case of actual breach Leaving of the law where pursuit on to the high sea would probably be papers. justified. Leaving any question of rescue on one side, suppose a ship goes to sea without her clearance, and so, as it were is a participator in the offence of the master. The breach of the law per se is not serious, and the consequences usually fall on the ship at her next port of call.
A penalty is however generally provided in the Customs laws, but which is enforceable only when the ship comes again to the port. But it may well happen that a master may deliberately break the law, going to sea in order to evade the necessary formalities of the port. And it may be too that the Executive has sufficient reasons for treating the offence as serious, and for taking all measures to enforce the law.
Obviously the case is not one in which this extreme remedy would often be resorted to: but a case may be imagined, in which it might be essential to the safety of the State that this latent power should be resorted to. Thus, if there were hostile tension between two States, and there were reason to suppose that the evasion was deliberately planned with the connivance of the Government of the State to which the ship belonged, in order to secure some important documents. Pursuit on to the high sea and seizure would be the only effective remedy, and it is suggested would stand justified. Apart from the recovery of the documents, the procedure in the Courts would be only to enforce the penalties imposed by the Customs laws, so long as the tension had not developed into actual war.
The principle of hot pursuit applies as well to breaches of the law in force in the territorial waters as to offences committed in harbour or in the waters of the dominion. It has in fact a very special application to the territorial waters, for it fills one of the
Chapter I gaps left in the protection of the national rights by the fact that these waters are not part of the realm. Breaches of revenue and fishery laws are more often than not committed in shore by small Offences by boats, the ship herself lying off in the territorial waters. In such the ship a case, the seizure of the ship would undoubtedly be justified on lying off su- the ground that the boats are the dependencies of ship, and that perintendtherefore she is herself constructively guilty of having committed the offence.
Protective legislation against breach of Customs Law.
The territorial waters have been specially referred to, as the question has a practical bearing on what may be called the legal status of these waters. But the rule here suggested is obviously not limited to them; the ship's boats may themselves be operating in territorial waters, and the ship lying some miles out to sea. There seems, however, to be one manifest condition attached to such a seizure that there should be some overt act of the ship in relation to the offence, showing her participation in it : thus, that she was superintending the operations of her boats, and was, in fact, their base or point d'appui.
Active participation in the offence is probably the essential to seizure, and not the mere fact that the boats belong to the ship. Suppose, for example, boats belonging to a vessel had been seized for sealing in dominion waters, the ship herself being at the time twenty miles away fishing on her own account. The seizure of the ship by a cruizer, in consequence of information by telegraph that her boats had been captured, could scarcely be justified. This brings us back to the simple case with which we started. The case is in fact a corollary of what has gone before. Certain conditions being fulfilled in regard to her relation to her boats, a vessel not actually in the waters is regarded as constructively within those limits: then the law as to seizure of vessels for offences committed within those limits must apply: that is to say, she may be seized at once, or she may be pursued on to the high sea.
THE HOVERING ACTS.
The Customs law deals with an offence known as "hovering at sea".
The legislation is of a very peculiar nature, being essentially preventive and protective. The law endeavours to prevent the commission of the offence of smuggling by chase on to the high
sea, and seizure if a vessel does not allow itself to be searched. Chapter I This question is intimately connected with the subject in hand, for here too, as in the case of the fishing boats last considered, the direct issues are raised-How far may the high sea be made the base from which breaches of the municipal law of any State can be operated? How far will the freedom of the sea cover these operations with impunity?
The principle of chase and seizure sanctioned by the Hover- Chase'and ing Acts† is in reality the common law principle of hot pursuit
in legislative form.
The sections of the Customs Laws Consolidation Act, 1876, 39 & 40 dealing with the subject are briefly the following
Vict. c. 36
[set out in
s. 179, which provides for the forfeiture of vessels arriving, 181. within the United Kingdom or a certain distance thereof, having Appendix prohibited goods on board or attached thereto : for penalties if the to this goods are destroyed, and on the persons on board.
s. 180, which requires certain vessels to heave to on signal : for chase, and forfeiture of the ship if goods are thrown overboard.
s. 181, which allows ships liable to seizure or examination
not bringing to when required, to be fired into.
These sections require very careful dissection to arrive at their true meaning, and to appreciate the nature of the jurisdiction which is assumed by them at sea. Certain minor details in which no fundamental principle is involved may be omitted.
The offence of "hovering" in its old form, as defined by the "Hovering" Act of 1736, 9 Geo. II, c. 35, s. 23, was committed by a vessel lying at sea. off within four leagues of the coast, and there transhipping foreign goods into smaller boats, by which they were smuggled on shore. The modern definition of the offence in s. 179, casts its net with less particularity of detail: no overt act is necessary, the offence is completed by the mere fact of the ship arriving within the kingdom, or within a certain distance from the coast, having prohibited goods on board or attached thereto, or being fitted with smuggling contrivances.
This distance is declared to be three leagues in the case of ships "belonging wholly or in part to British subjects", and one
+I have retained the old expression "Hovering Acts" for the modern provisions of the Customs laws, as they are in direct descent from the old Act-- 9 Geo. II, c. 35, which dealt with the offence then called "hovering ". The offence of to-day does not differ in principle from that created by the earlier legislation, for it could not be committed without the preliminary hovering at sea.