314 APPENDIX TO BRITISH COUNTER CASE. 



man who thinks that he was the first man who went from Massachusetts Into 

 this gulf and fished for mackerel, in 1827, or thereabouts. He probably was. 

 But mackerel fishing did not become a trade or business until considerably after 

 1830, and the catch of mackerel became important to us as well as to the 

 colonies. 



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What, then, is the money-value of the removal of the restriction? On the 

 subject of Newfoundland, which I desire to treat with great respect, because of 

 the size of the island and its numerous bays, and because of my respect and 

 affection for the gentleman who represents the semi-sovereignty before this 

 tribunal, there is an article in the Revue des Deux Mondes of November, 1874, 

 on the value of Newfoundland and its fisheries to France, of extreme interest, 

 from which I would like to quote largely. It seems to me to be exhaustive. It 

 gives the whole history and present condition of these fisheries, and among other 

 things, it shows that in attempting to grant us a right there, Great Britain 

 made us overlap very much the rights of the French; and that if we should un- 

 dertake to carry into effect some of the rights given us by the treaty of 1871, 

 we might have the republic, or monarchy, or empire, or whatever it may be, on 

 the other side of the water, to settle the question with as well as this tribunal. 

 I suppose this tribunal is satisfied that we do not catch cod within three miles of 

 Newfoundland ; that we do not catch even our bait there, but that we buy it. 

 Finding that we had proved a complete case, that we bought our bait there, the 

 very keen argument was made by the counsel on the other side, that though we 

 bought our bait, we must be held to have caught it. " Qui facit per ahum, facit 

 per se," says the counsel ; and so, if you buy a thing of a man and he sends a 

 boy out to get it, the boy is your messenger, not his ; and you have not bought it 

 of him, but of the person to whom he sends for it. This is a homely illustra- 

 tion, but it is perfectly plain. When a fisherman comes and says, " I will sell 

 my fish at so much a pound," and has not got them, but goes off and catches 

 them, and I pay him that price, I buy the fish of him, do I not? What is it but 

 a mere illusion, a mere deception, a mere fallacy to say, that because I knew 

 that he had not the fish on hand at the time and is going off to get it. though I 

 agree to buy it of him at a fixed rate, and I am not going to pay him for his 

 services, but for the fish when delivered, that I am fishing through him and not 

 buying of him? It is very hard to argue a perfectly clear case, and one that 

 has but one side to it. Nothing but stress of law, or stress of facts, or stress 

 of politics, could possibly have caused so much intelligence to be perverted upon 

 this subject into an attempt to show that we were the catchers of the Newfound- 

 land bait. 



189 I will now take up for a moment the question of the cod fisheries, and I 

 know that, whatever I may have been thus far, I shall be somewhat tedious 

 here in the course which I am about to pursue; but I do not wish it to be said 

 on the other side, and my instructions are not to leave it to be said, that we 

 have asserted and stopped at assertions, however certain we may be that our 

 assertions are well-founded, and even that they have the approbation of the 

 court. I shall endeavor to refer to the evidence, without reading much of it, 

 on the principal points which I have so far assumed, and would be quite author- 

 ised in assuming. 



In the first place, as to the cod fishery, it is a deep-sea fishery not a fishery 



within three miles. I do not mean to say that a stray cod may not be caught 



occasionally within that limit; but as a business, it is a deep-sea business. 



With your honors' permission I will read some of the evidence on that point. 



******* 



The bait of the codfish need not be caught within the three-mile line. That, I 

 think, we have pretty well established. I referred just now to their argument, 

 that we caught whatever we bought, but that I certainly may pass by. We 

 may buy it when we wish it, but we need not have it. Your honors recollect the 

 testimony of our witnesses from Provincetown, as well as those from Gloucester, 

 who said that they believed it was more for the interest of all concerned that the 

 cod fishery should be carried on with bait kept in ice as long as it can be, and 

 salted bait with fish, and bait, and liver, and everything else that can be car- 

 ried out and kept there, and wh.-it birds and fish can be caught on the Banks, 

 and the vessels stick to their business. The testimony was uniform ; there was 

 not one who failed to join in the expression of opinion, that that course was far 

 better for the mercantile purposes of our community, than that our fishermen 

 should run inshore and buy the bait. But if they did go inshore and buy the 



