area mentioned shall the method of fishing in question be practised by anybody. Any other meaning can only be reached by the interpolation of words which are not used, and which, if interpolated, would materially alter the sense. And no case has yet occurred-certainly none has been cited-where the presumption on which the appellant founds had been held adequate to limit or qualify the terms of an enactment thus definite -expressed in quite definite language-and applied to a quite definite

area.

The difficulty, however, of the appellant's construction-the difficulty, that is to say, of applying his presumption-is accentuated by several other considerations.

In the first place, the scheme and object of the enactment have to be considered. Plainly, that object was to protect the area-the whole area in question-as against a mode of fishing assumed to be injurious. And it need hardly be said that that object would not be attained, but would, on the contrary, be frustrated, by a construction of the enactment which, while it restrained British subjects from trawling within any part of the protected area, yet permitted foreigners to trawl as they pleased over the greater part of it. It is plain that under such conditions the mischief to be redressed would not be redressed, but might even be aggravated. Accordingly, it would be, I think, easier to suppose that the legislature had reached even an erroneous conclusion as to the extent of its jurisdiction, and had legislated accordingly, than that it had resolved deliberately to impose a futile restriction upon its own countrymen, and at the same time to create a hurtful monopoly in favour of foreigners. It would also, I think, be easier to accept almost any reasonable alternative, than to assume that the legislature contemplated a practically unworkable enactment- -an enactment which would, in every prosecution under it, leave the issue to depend upon the result of an investigation by the local judge, of perhaps large and difficult questions of international law.

These are, it seems to me, at least serious difficulties in the way of reading into this statute and bye-law qualifying words which are not expressed. And other difficulties might, I think, be figured. But assuming all these to be overcome, one conclusive consideration I venture to think remains, viz: this, that the presumption on which the appellant founds has never, so far as known, been applied or proposed to be applied except where the excess of jurisdiction was clear. In other words, the whole ratio of the presumption fails if it appears that the area which is in controversy, is at best only in the position of debatable ground; being in fact within a category as to which different nations.

have always taken more or less different views, and maintained different contentions.

This last observation, however, involves the consideration, not substantively, but as bearing on the point of construction, of the appellant's second proposition which, as I understand it, is really this-that outside of the line where the protected area-that is to say the Moray Firth narrows to a width of ten (or perhaps rather thirteen) miles-its whole waters are simply parts of the open sea-being so (1) according to established rules of international law, and (2) according to alleged special rules applicable, as it is said, to the Moray Firth, introduced by the North Sea convention of 1883, as scheduled to the sea fisheries act of that year. And if all this were made out, I acknowledge that on the point of construction the appellant would have a perhaps formidable case.

It, however, seems to me vain to suggest that according to international law there is any part of the Moray Firth which is simply an area of open sea, and thus in the same position as if it were situated, say, in the middle of the German Ocean. For prima facie, at least, the whole Firth, is, as its name bears, a "bay" or "estuary," formed by two well-marked headlands, and stretching inwards for many miles into the heart of the country. All that can be said contra is only this-that at its outer end the Firth is very wide, and is of a size, if not also of a configuration, somewhat beyond what is usually characteristic of bays and estuaries. That may or may not be so. The cases of the Bristol Channel, the Firth of Clyde, and the Firth of Forth, would have to be considered before that proposition could be affirmed. But, be that as it may, the real question I apprehend is-whether, by international law, there is any recognized and established rule on the subject, particularly a rule so arbitrary and artificial as that of the ten-mile measure, for which the appellant contends.

Now as to that, it is, I think, enough to say that no such rule exists, or (which is the same thing), that we have not had presented to us any evidence of its existence. But I may add that, if negative authority may be invoked, there seems to me to be no better authority as to the existing position, than the passage quoted at the discussion from Lord Blackburn's or rather the Privy Council's-judgment in the Conception Bay Case (Direct United States Cable Co. v. Anglo-American Telegraph Co., L. R., 2 App. Cas. 420), in which, after reviewing existing authorities, their lordships sum up the result thus:

It does not appear to their lordships that jurists and text-writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state

possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination.

It seems difficult in face of this (the, I think, latest deliverance on the subject) to affirm that the statute and bye-law here in question are (if construed in their natural sense), in breach of plain and established rules of international law.

It remains, however, to consider as to the supposed bearing of the convention of 1883. And no doubt, if the question were one of exclusive fishing privileges, the convention might have an important bearing. For it defines, quite in terms of the appellant's contention, the extent to which, inter alia, in the Moray Firth, British subjects shall have the exclusive right of fishing. But exclusive fishing privileges-or, at all events, exclusive fishing privileges as defined by convention-are one thing. Territorial jurisdiction, proprietary or protective, is a different thing. And, as I read the convention of 1883, it is only with respect to exclusive fishing privileges that its terms and provisions have any relevancy. There is certainly nothing in the convention, at least nothing was brought under our notice, which in the least conflicts with the right of the several contracting nations to impose, each of them within its territorial limits (whatever these are), restrictions universally applicable against injurious practices or modes of fishing, such as are by this statute and bye-law imposed here. In other words, there is nothing in the statute and bye-law in question which at all interferes with the exclusive fishing privileges of the several nations. I cannot assent to the argument, that the convention really introduces a new chapter into general international law-a chapter establishing, with respect to the definition of bays and estuaries, or at all events bays and estuaries off the North Sea, new and artificial rules. That appears to me to be a somewhat extreme proposition. I may add that I have not found it necessary to consider the effect of the appellant's vessel belonging to Norway-a country which was not a party to the convention, and had probably good reasons for not being so. I assume, for the purposes of our judgment, that the appellant is in no worse position than if he had been the master of a German or Danish fishing vessel.

The result on the whole, therefore, is that without deciding substantively whether or not the whole area of the Moray Firth would or should. be recognised by an international tribunal (if such existed), as within the jurisdiction of the British crown, I am prepared to consider myself bound to hold-what is sufficient to support this conviction-that upon its just construction the act of 1889 asserts the existence, for the pro

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 rightof 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