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legislation and that if the provisions of the Customs Act were Chapter I subjected to the rule of "religious interpretation", which some Judges have endeavoured to establish, some of them might be III.] found not to be in accordance with the canonical rules of jurisdiction, and be interpreted in such a way as to defeat the manifest intention of the Act; it matters little to determine in regard to what precise particulars this might happen. It is suggested that the argument based on jurisdictional rules would be altogether discarded by the Court, and the law enforced from a broader standpoint.
rests on prin
This form of legislation rests, as has already been hinted, not Hovering on the rule of jurisdiction, but on the principle of self-defence. legislation By the light of this principle it is asserted that it is recognised ciple of selfby all nations, and by the law of nations.
It cannot however be stated that opinions are unanimous on the subject of these Acts. The following divergent opinions may be collected from different authorities:
i. That they have now become so universal that they are recognised by the law of nations.
ii. That they are sound in principle: being based on “the right of a State to take all necessary measures for the protection of its territory and rights, and the prevention of any breach of its revenue laws."
iii. That the jurisdiction is not in invitum, but from its nature is exercised only over trade in progress towards our shores.
iv. That they are unsound in principle, because the jurisdiction of a State is absolutely bounded by the territorial waters.
7. That though they are unsound, they are tolerated on account of the mala fides of the vessel implicated.
With regard to the first view, we have unfortunately not sufficient evidence that this form of legislation exists so universally as to warrant the statement that it has, for this reason, become part of the law of nations. The assertion is probable, but it has not, so far as I know, been supported by a comparative study of the laws of all nations.
The third view, that this jurisdiction is not in invitum-in other words, that it is a jurisdiction which, being only exercised in port it is optional to the ship to accept or not, is difficult to follow. Undoubtedly, trading to any given port is optional, and
Chapter I to this extent therefore the ship may be said to have a right to choose whether the jurisdiction shall be submitted to or not. But in the first place, the offence of hovering does not depend on coming to the port, but on lying outside; and in the second place, it needs some stretching of legal language to describe legislation affecting persons who have, or are assumed to have, the deliberate intention of smuggling, as different in principle from other legislation having for its object the punishment of more common offences.
The "toleration view examined.
The fifth, or "toleration " view, though it has the support of many very eminent lawyers, is in truth no principle at all, and is treated confessedly as a question of policy. It does not go the length of asserting that it is the duty of a State not to interfere to prevent, or protest against seizure, because its vessel has acted mala fide: it hardly even asserts that non-interference in such a cases is becoming customary: but only that it is a question of policy for one State not to interfere where one of its vessels has been seized for an offence by a friendly State. But this surely is too uncertain a ground on which to rest such important legislation: for if that legislation is in fact unsound, the seizing State has no answer, even if the vessel is seized in the act, if its Government chooses to abandon this policy and to protest. And even the term "friendly State" does not smooth away the difficulties for. in the very endeavour to enforce her views as to this peculiar form of legislation, the seizing State may become a hostile State. Such acts indeed might lead to preparations for war for the violation of the freedom of the sea has always been looked upon as a casus belli.
But even assuming that this legislation rested on no broader basis than that of a policy of non-interference, it is clear that the policy itself requires some limitation to its exercise. It is not seizure under any statutes which would be tacitly submitted to, but only under statutes which are reasonable in their nature and operation; or perhaps, which are analogous to those which are in force in the State to which the offending vessel belongs. But then, what would this policy of non-interference amount to? Practically to the recognition of the reasonableness and justice of a statute which is not otherwise valid by international law: to the toleration of the exercise of a jurisdiction over vessels on the high sea, but, at the same time, to the negation of the right to
exercise it. It would endow the foreign legislation with the Chapter I strength which it does not possess inherently, and that without even the assurance of reciprocity.
It is essential, therefore, to enquire whether this form of legislation cannot be rested on a safer basis: whether it may not be justified by the law of nations. The second view, that this legislation is sound, is advocated by, among others, Cockburn C. J., Marshall C. J., and Sir W. Scott.
ness of this
The question is, whether a State may, for a particular purpose, The soundcreate an area outside its territorial waters within which it may legislation declare certain acts to be offences, even when committed by for- examined. eign vessels: such vessels being liable to chase on to the high seas and to seizure.
L. R. 2 Ex. D. at p.214.]
In this there is no question of toleration. It was the right of a State to take these measures of protection that Cockburn C. J. referred to in R. v. Keyn. It was the right recognised and submitted to by other nations that Marshall C.J. asserted in Church [2 Cranch, v. Hubbart. It was the right that Sir W. Scott emphasized in 187.] the "Le Louis". Higher judicial authority to support a principle of [2 Dodson, international law could not be found.
But yet, for such weakness as it may introduce into the voice Authorities of authority, it is to be noted that two at least of these opinions supporting are obiter. In Church v. Hubbart, an action on a policy of insu- tion. rance, the question was whether the seizure fell within the excepted risk, which was against things prohibited by Portuguese law and under this law, so well-known to both parties that it was practically the excepted risk, the vessel was seized. The discussion whether that law found a warrant in the law of nations was therefore beside the question. In like manner, the expression of an opinion on this point was not absolutely material to the question whether Ferdinand Keyn's negligence was triable by the English Courts. But obiter dicta are not necessarily bad law. The eminence of the Judge, the object with which he introduces his remarks, their bearing on the main issue, are points material to be considered. And here the dicta were far from being casually irrelevant. The first was in a considered judgment of much learning the second in one of the most elaborate and masterly reviews of a whole subject that has ever been delivered from the English Bench. Sir Alexander Cockburn expressed doubt and uncertainty as to the actual existence of the 3-mile limit; but in
Chapter I striking contrast with this spirit of doubt, we find on this question of the Hovering Acts the spirit of conviction: we find the affirmation of the broad principle which had been enunciated many years previously, that Parliament has the right to pass them within the limits which the American Chief Justice attached to it, that both the distance from the shore, and the steps to be taken to enforce the law, should be reasonable: for on this reasonableness the acquiescence, as distinguished from the toleration, of other nations is dependent. Such an opinion, coming from such a source, it is impossible lightly to pass over.
The opposite view.
Conclusion: that the Hovering Acts are
Against these very strong opinions there is no judicial authority at all; but the contrary view is expressed by Mr. Dana in his note in Wheaton's Commentaries. His argument resolves itself into this, that the legislation is unsound because it applies beyond the territorial waters. He pins his faith entirely on the immutability of the 3-mile limit. But, as we have already seem, the 3-mile limit is far from being the standard: the "marine league" is not accepted in the law of nations as the universal measurement, even of the ordinary territorial waters.
To say that a Hovering Act is unsound in principle because it applies to an area outside the territorial waters of the State, is equivalent to saying that the limit of jurisdiction of a State seaward is the same for all purposes: which begs the question under discussion.
But it is not and the conclusion that the territorial waters of a State must be recognised so long as the distance is reasonable, although the limit does not correspond with that of the legitimate. State called on to recognise it, has been found to be based on
[per Marshall C.J. cit.
L. R. 2 Ex.
fact as well as theory. On fact, because all nations are not agreed as to the necessity for a uniform limit: nor does any nation insist that the limit of another State must correspond with its own, which is the meaning of non-recognition. On theory, because, as it has already been said, what is sufficient for a nation with a limited coast line may well be insufficient for one whose coast is a great extent; the restrictions which are inevitable where the territorial waters have to be withdrawn from a narrow, muchfrequented sea, are not necessarily binding in less-frequented oceans. And so with regard to special laws which nations have found to require an extension seaward for self-defence, laws dealing with fisheries, revenue, and health, the same argument
must apply: what is sufficient for the protection of some interests Chapter I may be insufficient for the protection of others: and the requirements of each law may themselves vary in different countries, and even in different localities in the same country. The British Behring Sea Commissioners in fact reported that three miles was insufficient to protect the Canadian seal fisheries. Ex concessis, three miles is insufficient to prevent smuggling.
I therefore submit that the Hovering Acts are sound in principle, and warranted by the law of nations, so long as the essential conditions are fulfilled, that the provisions of the law and the distance to which they operate seaward, are reasonable.
But this test of reasonableness as to distance must be ap- Hot pursuit plied only to the Act itself in its definition of the offence of force the hovering. It does not preclude the application of the doctrine of visions of "hot pursuit" in all its rigour, and beyond the limits created by the Act. the Act, when the offence has actually been committed.
The standpoint of municipal law cannot differ from the standpoint of international law.
It is submitted that legislation which is sound from one standpoint cannot be unsound from another: that what is held warranted by the law of nations, cannot be unwarranted by the law of England. If, therefore, the question were to come before an English Court whether a penalty imposed on a foreigner under one of the foregoing sections could be legally enforced, or whether a seizure of a foreign ship on the high sea was valid, it is suggested that the Court would not act on any narrow construction resulting from the rules of jurisdiction, but would adopt the broad construction resulting from the principle of self-defence.
But once the principle of self-defensive legislation is admitted, it follows that the principle cannot be limited to statutes for the protection of the revenue by prevention of smuggling, but must apply to all cases where necessity demands it. The authorities already quoted support the principle to this full extent. Thus, Sir W. Scott in the " Le Louis" referred to "fiscal and defensive regulations more immediately affecting safety and welfare". Cockburn C. J. referred to "the right of a State to take all necessary measures for the protection of its territory and rights, and the prevention of any breach of its revenue laws". Marshall