724 THE SOVEREIGNTY OF THE SEA 



mainly on the same ground as in the above case, that the 

 statute was general and applied to all persons, but Sheriff 

 (now Lord) Guthrie also held that the Moray Firth was within 

 the territorial waters of Scotland. 1 



The case in regard to Mortensen was appealed and was 

 heard by the full bench of twelve judges of the High 

 Court of Justiciary, who unanimously upheld the conviction 

 and dismissed the appeal. The leading opinion was de- 

 livered by the Lord Justice - General (Lord Dunedin), who 

 treated the question as one of construction, and of construc- 

 tion only, since the court had nothing to do with whether 

 an Act of the Legislature was ultra vires or in contraven- 

 tion of international law; they had only to give effect to it. 

 The terms of the Act, applying to " every person " committing 

 the offence within an area which' was precisely defined, 

 made the inference strong that it was meant to apply 

 to all persons whatsoever; and this inference was further 

 strengthened by the consideration that the clear object of the 

 Act was to stop trawling, and that object would be defeated 

 or rendered less effective if the prohibition applied only to 

 British subjects, while leaving those of other nations free. 

 With regard to the territorial or non-territorial character of 

 the place where the Niobe had been trawling, Lord Dunedin 

 said that while it might be assumed that within the three-mile 

 limit the territorial sovereignty would be sufficient to cover such 

 legislation, that was not a proof of the counter proposition, 

 that outside the three miles no such result could be looked for. 

 There were at least three points which went far to show that 

 the locus was intra fauces terrce: (1) the dicta of the Scottish 

 Institutional Writers, as Stair and Bell ; 2 (2) the fact that the 

 same statute puts forward claims to analogous places, as, e.g., 

 the Firth of Clyde ; (3) there were many instances in decided 



1 " In fact, the Moray Firth, within the line from Duncansby Head to Rattray 

 Point, is not the high seas, but is a bay or area between these headlands intra 

 fauces terrce, between the jaws of the land, which has been called in England 

 one of the King's Chambers. In law, such an area must be dealt with by the 

 Courts of this country as part of the territorial limits of Scotland, unless the 

 Legislature chooses to enact, in fairness to other countries or for any other reason, 

 that the extent of the space involved is too great to come within the reasonable 

 definition of a bay." 



2 See p. 545. 



