1556 AWARD OF THE FISHERY COMMISSION. 



to forfeiture. If they come in for the purpose of buying ice they are in 

 the same predicament they have not entered for the purpose of buying 

 wood or obtaining shelter; they have come in for the purpose of buying 

 ice which is wholly foreign to the provisions of the Treaty of 1818. They 

 could not under the Treaty of 1818 enter for that purpose and the posi- 

 tion assumed by the learned Agent and counsel for the United States is 

 that that privilege is not conferred by the Treaty of Washington. If so, 

 thev haven't got it, and every time they come in for other purposes than 

 those mentioned in the Treaty of 1818 they are liable to forfeiture. The 

 surprise with which I, as counsel, heard that contention will, I have no 

 doubt, be only exceeded by that of the fishermen of the United States 

 when they tin'd that that is the construction placed on the treaty by the 

 Government of the United States as represented by their Agent before 

 this Commission. If this argument applies to buying bait and ice, a 

 fortiori, it applies to the privilege that they now enjoy of lauding and 

 transshipping cargoes. Under the plain reading of the treaty, there is 

 no doubt about it, and if it does not come within the incidental privi- 

 leges, I admit that, as a lawyer, I cannot contend for one moment that 

 the privilege of buying bait or at all events of buying ice, whatever 

 may be said about bait, as to which there may be a particular construc- 

 tion, to which I will refer presently I admit frankly that I cannot see 

 that the privileges of buying ice or of transshipping cargoes are con- 

 ceded unless they are to be considered as necessarily incidental. If it 

 is denied that they are conceded incidentally, then the moment a vessel 

 lands for any of those purposes, a forfeiture is worked immediately. 



There is just this distinction with reference to the taking of bait. It 

 has been shown by numerous witnesses before this tribunal that these 

 men come in and employ our fishermen to get bait for them, and then 

 pay the fishermen for doing so. Now I wish to be distinctly understood 

 upon this point. I submit, without a shadow of doubt I don't think it 

 wbe controverted on the other side, at all events it will not be success- 

 fully controverted that if those fishermen, having a right to come 

 in and fish, as they undoubtedly have under the treaty, choose to hire 

 im-ii to catch bait for them, they are catching that bait themselves. 

 Thre is a legal maxim put in old Latin, qui facit per alium facit per se 

 what a man does by an agent he does by himself. Therefore in all 

 these instances where it has come out in evidence that they come in 

 ami net our fishermen to catch bait for them and pay them for doing so, 

 in all such cases the act is that of the United States fishermen them- 

 selves. On the other hand, if the fishermen upon the coast keep 

 larjje supplies of bait for the purpose of selling to such persons as come 

 along, then under the construction of the treaty contended for by the 

 learned Agent of the United States Government, whenever bait is pur- 

 chased in that way, that is a purpose for which it is unlawful to enter 

 our ports under the Treaty of 1818, and the act works a forfeiture of the 

 Teasel anil cargo. That is a startling proposition. 



In reference to bait there is another consideration I throw out. I do 



not know whether it will be dissented from or not by the learned conn- 



i- other side, but this treaty does give them this power, that 



hey shall, in common with the subjects of Her Britannic Majesty, have 



the liberty, tor the term of, &c., to take fish. May not buying fish be a 



taktny offlik within the meaning ot the treaty? 



1 1 does not say to catch fish. The words are not to fish," but " to take 



imply uses the word " take." The term is a wide one, and I am 



by any means prepared to say that by a strict legal construction these 



eople, finding the fish caught here, have not a right to take it from 



