118 The Frederick G erring, Jr. 



mistakably be brought within its provisions ; there must be no 

 doubt about it. But we must not do violence to ordinary lan- 

 guage; we must not take from plain words their ordinary and 

 universal meaning for this purpose. The question is whether this 

 vessel was 'Tishing," when, for two hours or more, her crew were 

 bailing, or scooping out, by means of a dip-net, from the area of 

 w^ater surrounded by the seine, the one hundred and thirty barrels 

 (more or less) of mackerel which they finally secured. The act 

 of fishing is a pursuit consisting, not of a single but of many acts 

 according to the nature of the fishing. It is not the isolated act 

 alone either of surrounding the fish by the net, or by taking them 

 out of the water and obtaining manual custody of them. It is a 

 continuous process beginning from the time when the preliminary 

 preparations are being made for the taking of the fish and extend- 

 ing down to the moment when they are finally reduced to actual 

 and certain possession. That, at least, is the idea of what "fish- 

 ing," according to the ordinary acceptation of the word, means, 

 and that, I think, is the meaning which we must give to the word 

 in the statutes and treaty. There is here, as I conceive, no need 

 for interpretation, and the fundamental canon is : "Do not inter- 

 pret where there is no need of interpretation." If when the S. S. 

 Aberdeen, moving eastward saw the Gerring, a mile and three- 

 quarters from shore, engaged as I have described, some of her 

 crew bailing fish from the water, others assisting to confine the 

 fish into smaller and smaller compass, so as to be more easily 

 secured; others driving the fish within the ambit of the dip-net 

 by splashing with their oars in the water; others sorting and dress- 

 ing and otherwise treating the fish, the question were asked : 

 "What is the vessel doing?" Would not the inevitable answer be: 

 "She is fishing?" and if any one on board could be found bold 

 enough to affirm that she was not "fishing," that that operation 

 was completed hours before, when the seine was pursed up and 

 the mackerel therein enclosed, would he not be set down as either 

 ignorant of language or as bereft of reason? 



Even if the question depended upon the "taking" of the fish, 

 I do not understand that fish are "taken" when they are enclosed 

 in a seine, or encompassed about by it. They are still alive in 

 their native element, possibly with few but still with some chances 

 of escape. As I understand, they are never all taken; numbers 



