120 The Frederick Gerring, Jr. 



yet "taken." Storm and stratagem may yet be necessary before 

 the final overthrow, and not until that catastrophe is the "taking" 

 consummated. It was only after Troy had been besieged for ten 

 weary years that the Greeks succeeded, and then by wile, in taking 

 her. It was only then that "Ilium fiiit" became an historic fact. 



The treaty itself affords, I think, strong evidence against the 

 position contended for. The United States thereby renounced the 

 liberty to "take, dry or cure" within Canadian waters. The 

 framers of the treaty at least seemed to have thought that taking 

 and drying, or taking and curing, were consecutive acts embracing 

 all the natural operations of the fishing avocation. Were there a 

 number of acts after the taking, and before the curing or the 

 drying — intercalary or intermediate processes, acts that were not 

 "fishing" but that had a relation to fishing, such as the acts of 

 bailing, etc., to which I have referred — that might legally be done 

 in domestic waters? They evidently intended (whether or not 

 that intention has been sufficiently expressed) to prohibit in British 

 waters the doing of anything in connection with fish that would 

 make it an article of commerce, while the word "taking" was 

 intended to include all operations between the throwing of the 

 line or the casting of the net, and the processes directly necessary 

 to prepare or preserve the fish for human food. 



The question as to whether this vessel was "fishing" at the 

 time of the seizure must, I submit, be determined altogether irre- 

 spective of the position of the vessel at the time of the seizure; 

 for, wherever she was, she was "fishing" or she was not "fishing" 

 within the meaning of the statute. The quality of the act cannot 

 be determined by any consideration of position or location. She 

 was "fishing" or not "fishing" in that spot, whether it was three 

 or three hundred miles from land, its relative position quoad the 

 shore being immaterial. 



Nor is the question to be determined upon any consideration 

 as to legal property or legal possession. It is not necessary to 

 determine at what particular point of time, or at the conclusion of 

 what particular operation, did the fish become the property of the 

 catchers. I may have an exclusive right of fishery, a property 

 right to the fish of a particular stream, but whether I am or am 

 not "fishing" does not and cannot depend upon any question as to 



