ARGUMENT OF JOHN S. EWART. 1355 



" If the fish are taken for the benefit of inhabitants of the United 

 States, by employees who are not such inhabitants, it is a taking by 

 inhabitants of the United States in the sense of the words used, con- 

 sidered either in their ordinary significance or in their legal signifi- 

 cance of the law, in as much as an act performed by an agent is held 

 to be that of the principal." 



No doubt, for the purpose of ascertaining the rights or liabilities 

 of a principal the act of his agent is held to be his. But it seems to 

 me a very different thing, and a widely different proposition, to say 

 that whatever a principal may do by himself he may do by an agent ; 

 and yet that has to be the contention, or there is none in this connec- 

 tion. It is impossible, of course, to say that whatever a man may do 

 by himself he may do by an agent, Some things he may accomplish 

 by an agent, no doubt the general run of things he may do by 

 others as well as by himself; but it is not true to say that things 



which he may do by himself he may do by other people. 

 818 The second proposition of the United States is found at p. 



94, the second sentence from the bottom : 



" On the other hand, if he be on an American vessel engaged in a 

 bona fide fishing venture "- 



that is, a foreigner 



" for and in the interest of American inhabitants, his act is the act 

 of his principals, and, even though he be a non-inhabitant, his act 

 does not constitute the taking of fish by a non-inhabitant." 



It seems to me an extraordinarily strong proposition that when 

 an agent does something it is not his act. It may, of course, if he is 

 authorised, be the act of his principal; but undoubtedly he did it 

 himself. I have referred to that already, but I should like to refer 

 to it in connection with a statute of Delaware, which will be found 

 in the British Case Appendix, at p. 788 : 



" It shall be unlawful for any person not being a citizen of this 

 State to catch or take fish of any kind in the Delaware bay or river, 

 or any of the creeks emptying into the same, within the limits of this 

 Stated nor shall any person, being a citizen of this State, have trans- 

 ferred to him, or in any way have control over or possession of any 

 boat, vessel, or net, which shall be owned, in whole or in part, by any 

 person who is not a citizen of this State, and which is used for the 

 purpose of fishing in the Delaware bay or river, or any of the tribu- 

 taries thereof, within the limits of this State." 



Sirs, that clause seems to me to exclude persons not citizens, 

 whether they are fishing for themselves or fishing for anybody else. 

 It does not say, " It shall be unlawful for any person not being a 

 citizen of this State, unless under engagement to a citizen, to catch 

 or take fish." The exclusion is absolute. And if an American from 

 Rhode Island, for instance, were under prosecution under that clause 



