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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. We 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.
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. 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, Doc
teur 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.
But the vital principles remain the same; and the problems which have been awaiting solution continue to tax the ingenuity of statesmen and jurists who have aspired to secure the same impartial justice in the determination of disputes between states, as between private parties.
Among those problems, more or less real or imaginary, the want of a formal sanction for the sentences of arbitral tribunals continues to be agitated, even though numerous instances of the voluntary execution of arbitral awards by the losing parties during the last century, have demonstrated the needlessness of formal penaties to secure their performance.
For, a new force has entered into the domain of international politics and has furnished an all-sufficient guaranty of the voluntary discharge of arbitral awards; a power more imposing in its collected influence than fines, imprisonments, interdicts, or blockades, visited by offended upon offending states. The national humiliation and the political and commercial inconveniences and prejudices which a nation must suffer, if it disregards its plighted faith and its solemn international obligations, are so incalculable and injurious that no enlightened government can long fail to observe them.
Monsieur Dumas, in an octavo volume of over four hundred pages, has made an elaborate study of the subject. He gives a lucid and elegant historical sketch of the theory and practice of sanctions, beginning with the Amphictyonic Council and coming down to the present day. He considers them in their various aspects, as moral, material, civil, penal and political. Among the moral sanctions, he classes excommunications and the oath, public opinion and the plighted word; and among the material sanctions those known to public law as retorsion and reprisals, the pacific blockade, siege and war. Among the civil sanctions are the seizure of property, movable and immovable, sureties, hostages, pledges and mortgages. Thus far, Monsieur Dumas treats of certain definite and well known sanctions which have been tried. But public opinion, the author justly says, is
the judge of justice and the most efficient sanction of arbitration.
Public opinion is in turn safe-guarded against its own caprices and errors by the principle of liberty, freedom of speech, of the press, of association, of assembly and petition. Such are the sources, the agency and effects of public opinion, characterized by Monsieur Léon Bourgeois
as a new power; that of universal conscience which draws its inspiration from the essential principles of morality and of law, in whose stability and force it shares and to which it owes its constant and beneficent action.
The analysis of the nature, operation and influence of public opinion is admirable, but it is to be regretted that the author took occasion to exploit a conspicuous weakness of the French national character, in the treatment of so broad a topic as international arbitration. It hardly seems necessary again to remind the world of the moral superiority of the French over all other people; a task which has already been done so completely by Messieurs Guizot, Hugo, and other distinguished Frenchmen of letters. According to Monsieur Dumas “the national opinion of the English suffered an aberration during the sombre epoch of the war of the Transvaal; and the United States suffered the same syncope in the affairs of Cuba and the Philippines. Afterwards was seen that of Japan in a paroxysm of madness. But in all these circumstances, was international opinion ever at fault for a single moment? There were diverse sympathies but only a single judgment. International opinion was right but it erred in not acting, because it did not know how to act.” But he adds "international opinion will some day be able to act. Have we not had a proof of it in the Dreyfus affair.
"This voice of international opinion was heard, comprehended and believed in France; and it will be, before history, one of the grandest honors of France that she was able to respond so promptly to the appeals of reason and justice. Neither England nor the United States, in similar circumstances, would have been able to reconquer so soon by an act of political probity the esteem and confidence of the universe. France alone has hitherto had this merit.”
The author might well have added that neither in Great Britain nor in United States could the Dreyfus affair have occurred. His excellent work would certainly have lost nothing in dignity by the omission of all invidious allusions either to Great Britain, Japan or the United States. They were hardly to be expected in a work, dedicated to the author of the second Hague conference who, on the grounds of humanity, was one of the earliest and most ardent advocates of the intervention in Cuba; in a work, professing to treat of a question of exclusively international interest. These instances, as given by the author, could not illustrate and enforce the theme, inasmuch as they contain assumptions of fact not generally accepted and which involve a consideration of motives, antecedent and concurrent facts and circumstances and results, before final judgment could safely be pronounced. Are the people of Cuba better governed, more free, more prosperous, and happy under the present régime than they were under the ancient?
We are too near these events to presume to declare what will be the impartial and colorless judgment which will be finally rendered by the international tribunal of public opinion. But a very just and striking instance is given by the author of the persistent and disastrous effects of public opinion on the fortunes of any nation which has greatly erred through the lust of conquest and martial glory.