tective purposes to which it relates, of the jurisdiction in question-and that that is enough for us sitting here as one of his majesty's courts.

Lord Johnston: The offence charged is created by the herring fishery (Scotland) act, 1889, §7, which empowers the fishery board by byelaw to direct that beam trawling shall not be used in the Moray Firth within a line drawn from Duncansby Head to Rattray Point, and imposes penalties, superseded by those of the act 1895, §10 (4) and (5), on any person contravening such bye-law.

The enactment is not operative till the fishery board speaks by its byelaw. This it did in 1892.

The question raised by this appeal is, did the legislature intend the above enactment to be of universal application, or to be confined in its prohibition and its penalties to British fishermen? The language is absolute and general. But notwithstanding this absoluteness and generality, it would, I think, have been necessary to determine some of the larger questions of international law with which Lord Kyllachy has dealt, were it not for the following considerations, viz: first, that the enactment and its relative bye-law are no assertion of exclusive right of fishing, but only of right of regulation of fisheries. But, second, and more particularly, that the course of Scottish fishery legislation leads to a conclusion which precludes those wider questions above referred to.

I find that parliament, before the union and since, has been in use to provide for the regulation of fisheries round the coasts of Scotland, without confining itself to territorial waters in the narrower significance.

For instance, before the union, the act of Anne, 1705, cap. 48, was passed for the advancement and establishment of the fishing trade in and about the kingdom, and authorised her majesty's subjects to take herring and white fish in all and sundry seas, channels, bays, etc., of this kingdom, "wheresoever herring or white fish may be taken," and then proceeds to protect and regulate their trade.

The treaty of union itself, §15, provided for the application of a portion of the "equivalent" to encouraging and promoting the fisheries of Scotland. This grant permitted the first establishment in 1727, by 13 Geo. I. cap. 30, of the board of commissioners, which, after various changes in its constitution, was in 1883 superseded by the present fishery board.

A survey of the acts between 1727 and 1882, and they are numerous, discloses that the functions of these commissioners and their officers were not confined to inshore or strictly territorial waters. And it is consistent with the prior history of the matter, that in 1882, by the Act 45 and 46 Vict. cap. 78, §5, the present fishery board, having had con

ferred on them the whole powers and duties of the former board of British white herring fishery, are directed to "take cognisance of everything relating to the coast and deep sea fisheries of Scotland," and to "take such measures for their improvement" as the funds under their administration may admit of.

When I read the enactment under consideration in the light of previous legislation, I have no doubt that the legislature intended it to be of general application. I, therefore, agree in the conclusion at which your lordships have arrived.

Lord Salvesen: The facts of this case have been already fully narrated. I note, however, that the appellant does not found on his nationality as a Dane. The preliminary objection which he stated to the jurisdiction of Dornoch sheriff court, was on the footing that he was the foreign master of a steam trawler registered in Norway; and his counsel admitted that his case falls to be treated as if his own nationality had been the same as that of the ship he commanded.

It was conceded for the crown, and I think rightly, that if an offence is created by a statute of the British parliament, it will, in the ordinary case, be presumed to have no application beyond territorial waters. But as this presumption must yield to an express clause, that the act shall apply to foreigners and British subjects alike; so I think it will yield to a clear implication to the like effect. Where a British statute prohibits a certain thing to be done within a definite geographical area, it seems to me that there is no presumption that such a prohibition shall be confined only to British subjects. Still more, if, on examining the subjectmatter of the prohibition, it is found that it will be futile or ineffectual unless its operation is general, then I think its generality is not capable of any limitation in favour of persons who do not ordinarily owe obedience to the British parliament. These considerations are applicable to the present case. The statutes and bye-laws contravened have, for their objects, the protection of line fishermen, and the preservation of the spawning beds of fish in the interests or supposed interests of the whole fishing community. If they were to be construed as impliedly excepting from their scope all foreigners fishing from foreign vessels, such a construction would not merely defeat the object of the legislature, but would confer a privilege upon foreigners which was denied to British subjects. It can scarcely be supposed that a British parliament should pass legislation which would neither have the effect of protecting line fishermen from the competition of trawlers, nor of preserving the spawning beds, but would simply place British subjects under a disability which did not extend to foreigners-in other words, create in favour of

foreigners a monopoly of trawl fishing in the Moray Firth. I think it was a just observation of the solicitor general that, if legislation of this nature had been proposed, and the words inserted which the dean of faculty maintained were implied, it would never have been submitted by a responsible minister, or have received the approval of parliament.

The view which I have expressed is strengthened by a consideration of the area within which the operation of the bye-law is confined. The stretch of water known as the Moray Firth, and defined by the bye-law, is undoubtedly geographically inter fauces terræ; and there are many examples of states asserting exclusive jurisdiction within such areas, and of such assertion being acquiesced in by other nations. In these circumstances I think the act, under the authority of which the bye-law in question was passed, must be treated as an assertion by the British parliament of their right to regulate the fishing in this area, and to treat it as within the territory over which the jurisdiction of the Scottish courts extends. The right so claimed may or may not be conceded by other powers, but that is a matter with which this court has no concern. were told that the result of upholding the conviction would be to provoke reprisals by other powers. If so, that is a matter for the foreign office. But it is difficult to suppose that foreign nations should object to a regulation designed for the protection of fisheries in which they all share, and which confers no exclusive privileges on British subjects.

We

Perhaps the strongest point urged by the appellant was that based upon the sea fisheries convention of 1883, where the exclusive privileges of the fishermen-subjects of the high contracting parties were geographically defined; and it was said that it can never be assumed that parliament would legislate in violation of a treaty with foreign powers. If it were clear that the act of 1889, as now construed, is in direct violation of the convention, the argument would be of the greatest weight. But I find no sufficient reason for holding that a regulation which confers no exclusive fishing rights on British subjects is inconsistent with the convention. Moreover, in my opinion, the appellant cannot found upon the convention as conferring upon him any treaty rights. It was said that the convention might nevertheless be treated as evidence, and it was even contended as conclusive evidence of the limits of the claim over territorial waters which this country maintains. I do not think so. I see no reason why, even if Great Britain's territorial rights were limited, as by contract in a question with certain powers, she should not assert, as against Norway, rights of a much more extensive nature. On these grounds I have come to the conclusion that the sheriff court of Dornoch

had jurisdiction to try the offence charged, and that the conviction must therefore stand.

The Lord Justice-Clerk, Lord M'Laren, Lord Stormonth-Darling, Lord Low, Lord Pearson, Lord Ardwall, Lord Dundas and Lord Mackenzie concurred. Nineteenth July, 1906.

Counsel for Appellant, Dean of Faculty (Campbell, K. C.), Macmillan; Agents, Alex. Morison & Co., W. S.-Counsel for Respondent, Solicitor General (Ure, K.C.), T. B. Morison, Munro; Agent, W. S. Haldane, W.S.. Crown Agent.

BOOK REVIEWS: BOOK NOTES

Les Sanctions de L'Arbitrage International. Par Jacques Dumas, Docteur In Droit, Procureur de la Republique à Rethel. Avec une préface de M. D'Estournelles de Constant, 1906, Senateur, Président du Groupe Parlementaire de L'Arbitrage International. Paris. A. Pedone.

There are abundant evidences in the remains of ancient Greek and Roman literature that the resort to arbitration was practiced not only for the settlement of disputes between private parties but also between states.

Under the Roman rule, the mediation or arbitration of the senate or of popular leaders, like Pompey, was sometimes invoked by and between differing states, princes and leaders of contending factions. But these arbitrations, which were generally conducted with the semblance of fairness, were often treated and used, as convenient political agencies, to strengthen the hand of the dominant power.

There are numerous instances of the resort to arbitration during the middle ages, for the settlement of such differences, but they were mostly between petty princes and states and of a minor character. In the following ages the recourse to arbitration grew less frequent.

Francis the First and the Swiss Cantons, in the sixteenth century, set the first example in modern times of a permanent treaty of arbitration. In the seventeenth century, Oliver Cromwell, so fortunate in all the incidents and accidents of his career, in the association of his name with reforms of a great and permanent character, made a treaty with the the states of the Netherlands, which provided for a fair and friendly arbitration of differences between those states and the commonwealth.

But it was reserved for the nineteenth century rapidly to develop into what may now justly be called a usage of nations-since it received the sanction of an international treaty in 1899-the resort to arbitration in many cases of a nature that in former times could only have been solved by the sword. At the same time there has been manifested a marked tendency towards the creation of arbitral tribunals of a more severely judicial character and the assimilation of their procedure to that of the civil courts. The improvement in the methods, and the extension of the practice have corresponded to the broader, more just and enlightened ideas of our advancing civilization.