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The power given by this Act to the Board of Trade to "create Chapter IX sea-fishery districts has already been referred to.
For the purposes of this Act" the sea" is defined inversely to the usual definition of "county": it is declared to include the coast up to high-water mark.
Power to make bye-laws is given to a local fisheries com. mittee, dealing with fishing generally, such as the method of fishing with nets, and the size of the meshes.
As the sea-fisheries extend below low-water mark a jurisdiction clause was essential, and this was added by the Fisheries Act, 1891,-54 & 55 Vict. c. 37, s 8; which provides that where any offence under the Act
Is committed on the sea-coast or at sea beyond the ordinary jurisdiction of a Court of summary jurisdiction and not on or from a ship or boat, it shall be deemed to have been committed within the body of any county abutting on that sea-coast or adjoining that sea, and may be tried and punished accordingly.
Seine-fishing on the coast of Cornwall, except so much of the north coast as lies to the east of Trevose Head, is regulated under the provisions of s. 68 of the Act of 1868. The fishery is protected within a distance of two miles from the coast.
The fundamental law dealing with the Irish fisheries is 5 & 6 Vict. c. 106, amended by 7 & 8 Vict c. 108. The Act contemplates offences committed at sea, for s. 96 provides that offences committed "by any person or persons whatsoever while at sea" are to be treated as if they had been committed upon the land.
There are a few references to the sea in the body of the Act, but the distance seaward to which the sections apply is not stated. Thus, in s. 7 it is provided that no person. shall set, at any time between sunrise and sunset, either in the sea or within the tideway of any estuary, any sea-net for the catching of herrings.
The territorial waters are however made the basis of legislation in respect of steam trawling, which by the Steam Trawling (Ireland) Act 1889 52 & 53 Vict c. 74 is prohibited" within three miles of low-water mark of any part of the coast of Ireland ".
The Irish oyster fisheries are dealt with by s. 67 of the Sea Fisheries Act, 1868. It provides that the Irish Fishery Commis
cf. p. 285.
Irish oyster fisheries claimed
23 miles to
Chapter IX sioners may make regulations with regard to dredging for oysters on any oyster beds or banks situate within the distance of 20 miles measured from a straight line drawn from the eastern point of Lambay Island to Carnsore Point on the coast of Ireland outside of the exclusive fishery limits of the British Islands". This gives, it will be observed, a distance of 23 miles below low-water mark. The regulations which impose penalties are to apply equally to all boats and persons on whom they may be binding" and the Order in Council putting them in force "shall be binding on all British sea-fishing boats and on any other sea-fishing boats, in that behalf specified in the Order, and on the crews of such boats ". The intention seems to be to include foreigners.
The right to
This section has replaced s. 4 of the Act of 1866 which regulated the Irish oyster fisheries-29 & 30 Vict. c. 97 which was in terms similar to s. 29 of the Act of 1868 referred to above which regulates the oyster fisheries of the rest of the United Kingdom. The right of a State to make a claim to fisheries on the bed make such a of the sea, even to so large an extent seaward, has been' already unquestion- discussed, and it is submitted that it stands in no need of justifiable. cation. The claim in this case seems specially to support the arChapter II; gument already advanced, that Vattel's appeal to immemorial p. 25.] user is, at least in our own view, unnecessary.
[cf. Part I,
52 & 53 Vict. c. 23.
The first Sea-Fishery Act dealing with the Scotch fisheries is 48 & 49 Viet c. 70 the Sea Fisheries (Scotland) Amendment Act 1885, which is linked on to the Sea Fisheries Act, 1883.
By s. 4, when the Fishery Board for Scotland are satisfied that any mode of fishing in any part of the sea adjoining Scotland within the exclusive fishery limits of the British Islands [that is, as defined by the Act of 1883] is injurious to any kind of sea-fishing within that part, they may make byelaws prohibiting or restricting it.
In 1889, the Herring Fishery (Scotland) Act was passed, which, from the point of view of jurisdiction, is one of the most interesting enactments of the fishery laws on account of the variety of its provisions, of which the following is a brief sum
S. 2 The Act extends only to Scotland, and to parts of the sea adjoining Scotland.
s. 5.— Herring nets are not to be shot or set between sunrise Chapter IX and one hour before sunset, from 1st June to 1st October, nor between sunrise on Saturday morning and one hour before sun. set on Monday evening, on the west coasts of Scotland, between the Points of Ardnamurchan on the north and the Mull of Galloway on the south.
s. 6- Beam-trawling and otter-trawling is forbidden within 3 miles of low-water mark of any part of the coast of Scotland, and within the waters specified in the schedule, except where permitted by the byelaws of the Fishery Board: with the exception of Solway Firth and Pentland Firth.
The schedule deals with the waters of nearly all the bays round the much-indented coast of Scotland, by means of lines drawn between the two enclosing headlands.
s. 7.-Beam-trawling and otter-trawling may be forbidden. within a line drawn from Duncansby Head in Caithness to Rattray Point in Aberdeenshire, in any areas as defined in the byelaws.
Each of these sections contains its own penalty, but there is a further provision in s. 8, prohibiting the landing or selling in Scotland of fish illegally caught.
The fisheries were further regulated by the Sea Fisheries Regulation (Scotland) Act, 1895--58 & 59 Viet. c. 42-by which the Fishery Board for Scotland was reconstituted.
By s. 5 sea-fishery districts were to be created which were to include any part of the sea adjoining Scotland or within the jurisdiction of the Fishery Board. By s. 9, the regulation of seine trawling was added to s. 6 of the previous Act, within the waters mentioned in it.
By s. 10-beam-trawling and otter-trawling may be regulated Further by the Fishery Board " in any area or areas under the jurisdic- jurisdiction tion of His Majesty within 13 miles of the Scottish coast to be by Act of defined in the byelaw", except as to such areas lying opposite to any part of the coast of England, Ireland, or the Isle of Man, within 13 miles thereof :
"Provided that no area of sea within the said limit of 13 miles [58 & 59 shall be deemed to be under the jurisdiction of Her Majesty for the Vict. c. poses of this section, unless the powers conferred thereby shall have been s. 19.] accepted as binding upon their own subjects with respect to such area by all the States signatories of the North Sea Convention, 1882 ".
By s. 20, the Fishery Board may employ officers and vessels, and take such other means as shall be necessary for the efficient protection of the sea-fisheries, and for the observance of the byelaws.
Two forms The jurisdiction claimed for the Scotch fisheries is in two of Scotch fishery distinct forms. In the Act of 1886 there is an apparent extension jurisdiction. of the dominion waters, in the Act of 1873 a similar extension of the territorial waters in the open sea. Attention has already been drawn to the distances between the headlands in which the herring fishery has been protected. The line drawn from the Mull of Cantyre to Corsewall Point, which is the broadest expanse included in the schedule to the Act of 1889, measures about 35 miles whilst the line from Duncansby Head to Rattray Point is about 85 miles. The question here is, therefore, whether the intra fauces doctrine covers these wide expanses of water, or whether the legislation has to be justified on other principles.
Questions involved in application of the Acts to foreign
The proviso to s. 10 of the Act of 1895 rests the 13-mile limit of jurisdiction entirely on its acceptance by the signatory Powers to the Hague Convention. This, at first sight, would appear to exclude the subjects of non-signatory Powers from the operation of that section. It seems, however, not impossible to contend that when the jurisdiction has been accepted by the signatory Powers it would be treated as if it were incorporated in the Convention, and would thereupon, like the exclusive fishery limits, be claimed as against the world. Unless this is so, the subjects of nonsignatory Powers could do with impunity what British subjects and those of the signatory Powers could not do. The object of the protective enactment would not be attained, and there would be no inducement to the North Sea Powers to accept the jurisdiction.
But, puting questions of special construction on one side, the important question is whether any or all of such legislation can be justified in its application to foreigners.
That such legislation may be made for British subjects, even to the extremest limits of the sea, is admitted: but its application. to foreigners depends on other considerations which may be stated concisely thus:
(a)-if any of these waters are in fact within the intra fauces doctrine, foreigners are within the application of the law; (b) if this legislation amounts to an uncontroverted asser
tion to dominion over these waters, then again foreigners are Chapter IX bound by it;
(c) - part of these waters, in so far as they are not dominion waters, must fall within the belt of territorial waters, as defined by statute. To this extent the Act becomes express legislation for territorial waters, and within this extent they are binding on foreigners;
(d)-can the legislation be regarded as a legislative extension of the territorial waters ?
(e)-so much of the waters as are neither dominion nor territorial waters must be high sea: the question then is whether the language used in the jurisdiction clauses clearly indicates the intention of Parliament to make them applicable to foreigners;
(f)-if foreigners are excluded by reason of any of these considerations, the last question is whether, apart from any words used in the jurisdiction clauses, the intention of Parliament is to protect the home fisheries in these waters, and if so, whether the legislation does not fall within the self-defensive principle, and so become applicable to foreigners.
From the analysis of the bays contained in the schedule of the Act of 1889, it results that some of the waters, or some part of the large bays, are clearly dominion waters, whether we take the 10-mile headland doctrine or the wider intra fauces principle: and that some of the waters are practically coincident with (some indeed being less than) the territorial waters, and some with the territorial belt when drawn outside the dominion waters.
But there remains a large area of sea which falls outside. recognised principles, and the preliminary question to be decided with regard to this area is whether this legislation contains within No asseritself any such assertion of dominion as to warrant the contention tion of that it had been brought deliberately within the realm. To this fishery legislation. the answer must be in the negative; legislation passed merely for regulating fisheries, of itself never carries with it a claim to territory. We must therefore fall back on interpretation.
It may, I think, be taken for granted that legislation of this The legislanature falls well within the principle of self-defensive legislation. tion is selfBut then we stumble against that rigid rule of construction, that in the absence of express indication in the words used of a larger intention," any person " in extra-territorial legislation does not include foreigners. There can be little doubt that the rule laid