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The Paquete Habana, 175 U.S. 677 (1900) The Paquete Habana Nos. 895-896 Arue! No"e#ber 7-8, 1899 $e%&!e! 'anuar 8, 1900 175 U.S. 677 (1900) APPEALS FROM THE DISTRICT COURT COURT OF THE THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA Syllabus
Under the Act of Congress of March 3, 1891, c. 517, thi s Court has jurisdiction of appeals from all final sentences and decrees in prie causes, !ithout regard to the amount in dispute and !ithout an" certificate of the district judge as to the importance of the particular case. #nternational la! is part of our l a!, and must $e ascertained and administered $" the courts of justice of appropriate jurisdiction as often as %uestions of right depending upon it are dul" presented for their determination. &or this purpose, !here there is no treat" and no controlling e'ecuti(e or legislati(e act or judicial
decision, resort must $e had to the customs and usages of ci(ilied nations, and, as e(idence of these, to the !or)s of jurists and commentators, not for the speculations of their authors concerning !hat the la! ought to $e, $ut for trust!orth" e(idence of !hat the la! reall" is. At the present da", da", $" the general consent of the ci(ilied nations of the !orld and independentl" of an" e'press treat" or other pu$lic act, it is an esta$lished rule of international la! that coast fishing (essels, !ith their implements and supplies, cargoes and cre!s, unarmed and honestl" pursuing their peaceful calling of catching and $ringing in fresh fish, are e'empt from capture as prie of !ar. And And this rule is one !hich !hic h prie courts, administering the la! of nations, are $ound to ta)e judicial notice of, and to gi(e effect to, in the a$sence of an" treat" or other pu$lic act of thei r o!n go(ernment in relation to the matter. At the $rea)ing out of the recent !ar !ith *pain, t!o fishing smac)s ++ the one a sloop, 3 feet long on the )eel and of -5 tons $urden, and !ith a cre! of three men, and the other a schooner, 51 feet long on the )eel and of 35 tons $urden, and !ith a cre! of si' men ++ !ere regularl" engaged in fishing on the coast of Cu$a, sailing under the *panish flag, and each o!ned $" a *panish su$ject, residing in a(ana/ her cre!, !ho also resided there, had no interest in the (essel, $ut !ere entitled to shares, amounting in all to t!o thirds, of her catch, the other third $elonging to her o!ner, and her cargo consisted of fresh fish, caught $" her cre! from the sea,
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put on $oard as the" !ere caught, and )ept and sold ali(e. 0ach (essel left a(ana on a coast fishing (o"age, and sailed along the coast of Cu$a a$out t!o hundred miles to the !est end of the island/ the sloop there fished for t!ent"+fi(e da"s in the territorial !aters of *pain, and the schooner e'tended her fishing trip a hundred age 175 U. *. 278 miles farther across the ucatan Channel, and fished for eight da"s on the coast of ucatan. 4n her return, !ith her cargo of li(e fish, along the coast of Cu$a, and !hen near a(ana, each !as captured $" one of the United *tates $loc)ading s%uadron. either fishing (essel had an" arms or ammunition on $oard, had an" )no!ledge of the $loc)ade, or e(en of the !ar, until she !as stopped $" a $loc)ading (essel, made an" attempt to run the $loc)ade, or an" resistance at the time of her capture, nor !as there an" e(idence that she, or her cre!, !as li)el" to aid the enem". Held that that $oth captures !ere unla!ful, and !ithout pro$a$le cause. 6he cases are stated in the opinion of the Court. M. U*6#C0 A deli(ered the opinion of the Court. 6hese are t!o appeals from decrees of the :istrict Court of the United *tates for the *outhern :istrict of &lorida condemning t!o fishing (essels and their cargoes as prie of !ar. 0ach (essel !as a fishing smac), running in and out of a(ana, and regularl" engaged in fishing on the coast of
Cu$a/ sailed under the *panish flag/ !as o!ned $" a *panish su$ject of Cu$an $irth, li(ing in the Cit" of a(ana/ !as commanded $" a su$ject of *pain, also residing in a(ana, and her master and cre! had no interest in the (essel, $ut !ere entitled to shares, amounting in all to t!o+thirds, of her catch, the other third $elonging to her o!ner. er cargo consisted of fresh fish, caught $" her cre! from the sea, pu t on $oard as the" !ere caught, and )ept and sold ali(e. Until stopped $" the $loc)ading s%uadron, she had no )no!ledge of the e'istence of the !ar or of an" $loc)ade. *he had no arms or ammunition on $oard, and made no attempt to run the $loc)ade after she )ne! of its e'istence, nor an" resistance at the time of the capture. The Paquete Habana !as a sloop, 3 feet long on the )eel,
age 175 U. *. 279 and of -5 tons $urden, and had a cre! of three Cu$ans, including the master, !ho had a fishing license from the *panish go(ernment, and no other commission or license. *he left a(ana March -5, 1898, sai led along the coast of Cu$a to Cape *an Antonio at the !estern end of the island, and there fished for t!ent"+fi(e da"s, l"ing $et!een the reefs off the cape, !ithin the territorial !aters of *pain, and then started $ac) for a(ana, !ith a cargo of a$out ; %uintals of li(e fish. 4n April -5, 1898, a$out t!o miles off Mariel, and ele(en miles from a(ana, she !as captured $" the United *tates gun$oat Castine.
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put on $oard as the" !ere caught, and )ept and sold ali(e. 0ach (essel left a(ana on a coast fishing (o"age, and sailed along the coast of Cu$a a$out t!o hundred miles to the !est end of the island/ the sloop there fished for t!ent"+fi(e da"s in the territorial !aters of *pain, and the schooner e'tended her fishing trip a hundred age 175 U. *. 278 miles farther across the ucatan Channel, and fished for eight da"s on the coast of ucatan. 4n her return, !ith her cargo of li(e fish, along the coast of Cu$a, and !hen near a(ana, each !as captured $" one of the United *tates $loc)ading s%uadron. either fishing (essel had an" arms or ammunition on $oard, had an" )no!ledge of the $loc)ade, or e(en of the !ar, until she !as stopped $" a $loc)ading (essel, made an" attempt to run the $loc)ade, or an" resistance at the time of her capture, nor !as there an" e(idence that she, or her cre!, !as li)el" to aid the enem". Held that that $oth captures !ere unla!ful, and !ithout pro$a$le cause. 6he cases are stated in the opinion of the Court. M. U*6#C0 A deli(ered the opinion of the Court. 6hese are t!o appeals from decrees of the :istrict Court of the United *tates for the *outhern :istrict of &lorida condemning t!o fishing (essels and their cargoes as prie of !ar. 0ach (essel !as a fishing smac), running in and out of a(ana, and regularl" engaged in fishing on the coast of
Cu$a/ sailed under the *panish flag/ !as o!ned $" a *panish su$ject of Cu$an $irth, li(ing in the Cit" of a(ana/ !as commanded $" a su$ject of *pain, also residing in a(ana, and her master and cre! had no interest in the (essel, $ut !ere entitled to shares, amounting in all to t!o+thirds, of her catch, the other third $elonging to her o!ner. er cargo consisted of fresh fish, caught $" her cre! from the sea, pu t on $oard as the" !ere caught, and )ept and sold ali(e. Until stopped $" the $loc)ading s%uadron, she had no )no!ledge of the e'istence of the !ar or of an" $loc)ade. *he had no arms or ammunition on $oard, and made no attempt to run the $loc)ade after she )ne! of its e'istence, nor an" resistance at the time of the capture. The Paquete Habana !as a sloop, 3 feet long on the )eel,
age 175 U. *. 279 and of -5 tons $urden, and had a cre! of three Cu$ans, including the master, !ho had a fishing license from the *panish go(ernment, and no other commission or license. *he left a(ana March -5, 1898, sai led along the coast of Cu$a to Cape *an Antonio at the !estern end of the island, and there fished for t!ent"+fi(e da"s, l"ing $et!een the reefs off the cape, !ithin the territorial !aters of *pain, and then started $ac) for a(ana, !ith a cargo of a$out ; %uintals of li(e fish. 4n April -5, 1898, a$out t!o miles off Mariel, and ele(en miles from a(ana, she !as captured $" the United *tates gun$oat Castine.
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The Lla !as a schooner, 51 feet long on the )eel, and of 35 tons $urden, and had a cre! of si' Cu$ans, including the master, and no commission or license. *he left a(ana April 11, 1898, and proceeded to Campeach" *ound, off ucatan, fished there eight da"s, and started $ac) for a(ana !ith a cargo of a$out 1;,;;; pounds of li(e fish. 4n April -2, 1898, near a(ana, she !as stopped $" the United *tates steamship Cin!innati" and !as !arned not to go into a(ana, $ut !as told that she !ould $e allo!ed to land at
est. A li$el for the condemnation of each (essel and her cargo as prie o f !ar !as there filed on April -7, 1898/ a claim !as interposed $" her master on $ehalf of himself and the other mem$ers of the cre!, and of her o!ner/ e(idence !as ta)en, sho!ing the facts a$o(e stated, and on Ma" 3;, 1898, a final decree of condemnation and sale !as entered, ?the court not $eing satisfied that as a matter of la!, !ithout an" ordinance, treat", or proclamation, fishing (essels of this class are e'empt from seiure.? 0ach (essel !as thereupon sold $" auction/ the Paquete Habana for the sum of @9; and the Lla for the sum of @8;;. 6here !as no other e(idence in the record of the (alue of either (essel or of her cargo. #t has $een suggested in $ehalf of the United *tates that
age 175 U. *. 28; this Court has no jurisdiction to hear and determine these appeals $ecause the matter in dispute in either case does not e'ceed the sum or (alue of @-,;;;, and the district judge has not certified that the adjudication in(ol(es a %uestion of general importance. 6he suggestion is founded on 295 of the e(ised *tatutes, !hich pro(ides that ?an appeal shall $e allo!ed to the *upreme Court from all final decrees of an" district court in prie causes, !here the matter in dispute, e'clusi(e of costs, e'ceeds the sum or (alue of t!o thousand dollars, and shall $e allo!ed, !ithout reference to the (alue of the matter in dispute, on the certificate of the district judge that the adjudication in(ol(es a %uestion of general importance.? 6he udiciar" Acts of the United *tates, for a centur" after the organiation of the go(ernment under the Constitution, did impose pecuniar" limits upon appellate jurisdiction. #n actions at la! and suits in e%uit" the pecuniar" limit of the appellate jurisdiction of this Court from the circuit courts of the United *tates !as for a long time fi'ed at @-;;;. Acts of *eptem$er -, 1789, c. -;, --/ 1 *tat. 8/ March 3, 18;3, c. ;/ - *tat. -/ $%dn &. O'den" 3 et. 33/ e(.*tat. 291, 29-. #n 1875, it !as raised to @5,;;;. Act of &e$ruar" 12, 1875, c. 77, 3/ 18 *tat. 312. And in 1889 this !as modified $" pro(iding that, !here the judgment or decree did not e'ceed the sum of
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@5,;;;, this Court should ha(e appellate jurisdiction upon the %uestion of the jurisdiction of the circuit court, and upon that %uestion onl". Act of &e$ruar" -5, 1889, c. -32, 1/ -5 *tat. 293/ Pa%(e% &. O%)sby" 11 U. *. 81.
prie,? !as reenacted in 29- of the e(ised *tatutes, and the pro(ision of the act of 182, concerning prie causes, !as su$stantiall" reenacted in 295 of the e(ised *tatutes, alread" %uoted.
As to cases of admiralt" and maritime jurisdiction, including prie causes, the udiciar" Act of 1789, in 9, (ested the original jurisdiction in the district courts, !ithout regard to the sum or (alue in contro(ers", and in -1 permitted an appeal from them to the circuit courts !here the matter in dispute e'ceeded the sum or (alue of @3;;. 1 *tat. 77, 83, c. -;/ The *etsey" 3 :all. 2, 3 U. *. 12/ The A)iable Nan!y" 3 >heat. 52/ St%attn &. +a%&is" 8 et. , 33 U. *. 11. <" the Act of March 3, 18;3, c. ;, appeals to the circuit court !ere permitted from all final decrees of a district court !here
age 175 U. *. 281 the matter in dispute e'ceeded the sum or (alue of @5;, and from the circuit courts to this Court in all cases ?of admiralt" and maritime jurisdiction, and of prie or no prie? in !hich the matter in dispute e'ceeded the sum or (alue of @-,;;;. - *tat. -/ +en(s &. Le,is" 3 Mason 5;3/ St%attn &. +a%&is" a$o(e cited/ The Ad)i%al" 3 >all. 2;3, 7; U. *. 21-. 6he acts of March 3, 1823, c. 82, 7, and une 3;, 182, c. 17, 13, pro(ided that appeals from the district courts in prie causes should lie directl" to this Court, !here the amount in contro(ers" e'ceeded @-,;;;, or ?on the certificate of the district judge that the adjudication in(ol(es a %uestion of difficult" and general importance.? 1- *tat. 72;/ 13 *tat. 31;. 6he pro(ision of the act of 18;3, omitting the !ords ?and of prie or no
<" that act, as this Court has declared, the entire appellate jurisdiction from the circuit and district courts of the United *tates !as distri$uted, ?according to the scheme of the act,? $et!een this Court and the circuit courts of appeals there$" esta$lished, ?$" designating the classes of cases? of !hich each of these courts !as to ha(e final jurisdiction. M!Lish &. R--" 11 U. *. 221, 11 U. *. 222/ A)e%i!an Cnst%u!tin C. &. +a!(sn&ille Rail,ay" 18 U. *. 37-, 18 U. *. 38-/ Ca%ey &. Hustn Te/as Rail,ay" 15; U. *. 17;, 15; U. *. 179. 6he intention of Congress, $" the act of 1891, to ma)e the nature of the case, and not the amount in dispute, the test of the appellate jurisdiction of this Court from the district and circuit courts clearl" appears upon e'amination of the leading pro(isions of the act. *ection pro(ides that no appeal, !hether $" !rit of error or other!ise, shall hereafter $e ta)en from a district court
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age 175 U. *. 28to a circuit court, $ut that all appeals, $" !rit of error or other!ise, from the district courts ?shall onl" $e su$ject to re(ie!? in this Court or in the circuit court of appeal ?as is hereinafter pro(ided,? and ?the re(ie! $" appeal, $" !rit of error, or other!ise? from the circuit courts, ?shall $e had onl"? in this Court or in the circuit court of appeals, ?according to the pro(isions of this act regulating the same.? *ection 5 pro(ides that ?appeals or ! rits of error ma" $e ta)en from the district courts, or from the e'isting circuit courts, direct to the *upreme Court, in the follo!ing casesB?
6hird. ?#n cases of con(iction of a capital or other!ise infamous crime.? 6his clause loo)s to the nature of the crime, and not to the e'tent of the punishment actuall" imposed. A crime !hich might ha(e $een punished $" imprisonment in a penitentiar" is an infamous crime, e(en if the sentence actuall" pronounced is of a small fine onl". E/ Pa%te 0ilsn" 11 U. *. 17, 11 U. *. -2. Conse%uentl", such a sentence for such a crime !as su$ject to the appellate jurisdiction of this Court, under this clause, until this jurisdiction, so far as regards infamous crimes, !as transferred to the circuit court of appeals $" the Act of anuar" -;, 1897, c. 28. -9 *tat. 9-. &ourth. ?#n an" case, that in(ol(es the construction or application of the Constitution of the United *tates.?
&irst. &ifth. ?#n an" case in !hich the jurisdiction of the court is in issue/ in such cases, the %uestion of jurisdiction alone shall $e certified to the *upreme Court from the court $elo! for decision.? 6his clause includes ?an" case,? !ithout regard to amount, in !hich the jurisdiction of the court $elo! is in issue, and differs in this respect from the act of 1889, a$o(e cited. *econd. ?&rom the final sentences and decrees in prie causes.? 6his clause includes the !hole class of ?the final sentences and decrees in prie causes,? and omits all pro(isions of former acts regarding amount in contro(ers", or certificate of a district judge.
?#n an" case in !hich the constitutionalit" of an" la! of the United *tates, or the (alidit" or construction of an" treat" made under its authorit", is dra!n in %uestion. ? age 175 U. *. 283 *i'th. ?#n an" case in !hich the Constitution or la! of a state is claimed to $e in contra(ention of the Constitution of the United *tates.? 0ach of these last three clauses, again, includes ?an" case? of the class mentioned. 6he" all relate to !hat are commonl" called federal %uestions, and cannot reasona$l" $e construed to ha(e intended that the
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appellate jurisdiction of this Court o(er such %uestions should $e restricted $" an" pecuniar" limit ++ especiall" in their connection !ith the succeeding sentence of the same sectionB ?othing in this act shall affect the jurisdiction of the *upreme Court in cases appealed from the highes t court of a state, nor the construction of the statute pro(iding for re(ie! of such cases.?
U. *. 52/ A)e%i!an Cnst%u!tin C. &. +a!(sn&ille Rail,ay" 18 U. *. 37-, 18 U. *. 383. 6he act of 1891 no!here imposes a pecuniar" limit upon the appellate jurisdiction, either of this Court or of the circuit court of appeals, from a district or circuit court of the United *tates. 6he onl" pecuniar" limit imposed is one of age 175 U. *. 28
>rits of error from this Court to re(ie! the judgments of the highest court of a state upon such %uestions ha(e ne(er $een su$ject to an" pecuniar" limit. Act of *eptem$er -, 1789, c. -;, -5/ 1 *tat. 85/ *uel &. 1an Ness" 8 >heat. 31-/ Act of &e$ruar" 5, 1827, c. -8, -/ 1 *tat. 382/ e(.*tat. 7;9. <" section 2 of the act of 1891, this Court is relie(ed of much of the appellate jurisdiction that it had $efore/ the appellate jurisdiction from the district and circuit courts ?in all cases other than those pro(ided for in the preceding section of this act, unless other!ise pro(ided $" la!,? is (ested in the circuit court of appeals, and its decisions in admiralt" cases, as !ell as in cases arising under the criminal la!s, and in certain other classes of cases, are made final, e'cept that that court ma" certif" to this Court %uestions of la!, and that this Court ma" order up the !hole case $" !rit of certiorari. #t is settled that the !ords ?unless other!ise pro(ided $" la!,? in this section, refer onl" to pro(isions of the same act, or of contemporaneous or su$se%uent acts, and do not include pro(isions of earlier statutes. Lau O, *e, &. United States" 1 U. *. 7, 1 U. *. 57/ Hubba%d &. Sby" 12
@1,;;; upon the appeal to this Court of a case !hich has $een once decided on appeal in the circuit court of appeals, and in !hich the judgment of that court is not made final $" section 2 of the act. *ection 1 of the act of 1891, after specificall" repealing section 291 of the e(ised *tatutes and section 3 of the act of &e$ruar" 12, 1875, further pro(ides that ?all acts and parts of acts relating to appeals or !rits of error, inconsistent !ith the pro(isions for re(ie! $" appeals or !rits of error in the preceding sections 5 and 2 of this act, are here$" repealed.? -2 *tat. 8-9, 83;. 6he o$ject of the specific repeal, as this Court has declared, !as to get rid of the pecuniar" limit in the acts referred to. M!Lish &. R--" 11 U. *. 221, 11 U. *. 227. And, although neither section 29- nor section 295 of the e(ised *tatutes is repealed $" name, "et, ta)ing into consideration the general repealing clause, together !ith the affirmati(e pro(isions of the ac t,
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the case comes !ithin the reason of the decision in an analogous case, in !hich this Court saidB ?6he pro(isions relating to the su$ject matter under consideration are, ho!e(er, so comprehensi(e, as !ell as so (ariant from those of former acts, that !e thin) the intention to su$stitute the one for the other is necessaril" to $e inferred, and must pre(ail.? Fis( &. Hena%ie" 1- U. *. 59, 1- U. *. 28.
6he decision in this Court in the recent case of United States &. Ride%" 123 U. *. 13-, affords an important, if not controlling, precedent. &rom the $eginning of this centur" until the passage of the act of 1891, $oth in ci(il and in criminal cases, %uestions of la! upon !hich t!o judges of the circuit court !ere di(ided in opinion might $e certified $" them to this Court for decision. Act of April -9, 18;-, c. 31, 2/ - *tat. 159/ une 1, 187-, c. -55, 1/ 17 *tat.192/ e(.*tat. 25;+25-, 293, 297/ Insu%an!e C. &. Dunha)" 11 >all. 1, 78 U. *. -1/ United States &. San'es" 1 U. *. 31;, 1 U. *. 3-;.
?Appellate jurisdiction !as gi(en in all criminal cases $" !rit of error either from this Court or from the circuit courts of appeals, and in all ci(il cases $" appeal or error, !ithout regard to the amount in contro(ers", e'cept as to appeals or !rits of error to or from the circuit courts of appeals in cases not made final as specified in 2. . . . #t is true that repeals $" implication are not fa(ored, $ut !e cannot escape the conclusion that, tested $" its scope, its o$(ious purpose, and its terms, the Act of March 3, 1891, co(ers the !hole su$ject matter under consideration, and furnishes the e'clusi(e rule in respect of appellate jurisdiction on appeal, !rit of error, or certificate.? 123 U. *. 123 U.*. 138, 123 U. *. 1;. 6hat judgment !as thus rested upon t!o successi(e propositionsB first, that the act of 1891 gi(es appellate jurisdiction, either to this Court or to the circuit court of appeals, in all criminal cases, and in all ci(il cases ?!ithout regard to the amount in contro(ers"/? se cond, that the act, $" its terms, its scope, and its o$(ious purpose, ?furnishes the e'clusi(e rule in respect of appellate jurisdiction on appeal, !rit of error, or certificate.? As !as long ago said $" Chief ustice Marshall, ?the spirit as !ell as the letter of a statute must $e respected, and !here the !hole conte't of the la! demonstrates a particular intent in the legislature to effect a certain o$ject, some degree of implication ma" $e called in to aid that intent.?
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Du%usseau &. United States" 2 Cranch 3;7, 1; U. *. 31. And it is a !ell settled rule in the construction of statutes, often affirmed and applied $" this Court, that,
?e(en !here t!o acts are not in e'press terms repugnant, "et if the latter act co(ers the !hole su$ject of the first, and em$races ne! pro(isions, plainl" sho!ing that it !as intended as a su$stitute for the first act, it !ill operate as a repeal of that act.? United States &. Tynen" 11 >all. 88, 78 U. *. 9-/ 2in' &. C%nell" 1;2 U. *. 395, 1;2 U. *. 392/ T%a!y &. Tu--ly" 13 U. *. -;2, 13 U. *. --3/ Fis( &. Hena%ie" 1- U. *. 59, 1- U. *. 28/ Dist%i!t - Clu)bia &. Huttn" 13 U. *. 18, 13 U. *. -7/ United States &. Healey" 12; U. *. 132, 12; U. *. 17.
>e are of opinion that the act of 1891, upon its face, read age 175 U. *. 282 in the light of settled rules of statutor" construction and of the decisions of this Court, clearl" manifests the intention of Congress to co(er the !hole su$ject of the appellate jurisdiction from the district and circuit courts of the United *tates, so far as regards in !hat cases, as !ell as to !hat courts, appeals ma" $e ta)en, and to supersede and repeal, to this e'tent, all the pro(isions of earlier acts of Congress, including those that imposed pecuniar" limits upon such jurisdiction, and, as part of the ne! scheme, to confer upon this Court jurisdiction of appeals from all final sentences and decrees in prie causes, !ithout regard to the amount in dispute, and !ithout an"
certificate of the district judge as to the importance of the particular case. >e are then $rought to the consideration of the %uestion !hether, upon the facts appearing in these records, the fishing smac)s !ere su$ject to capture $" the armed (essels of the United *tates during the recent !ar !ith *pain. <" an ancient usage among ci(ilied nations, $eginning centuries ago and graduall" ripening into a rule of international la!, coast fishing (essels pursuing their (ocation of catching and $ringing in fresh fish ha(e $een recognied as e'empt, !ith their cargoes and cre!s, from capture as prie of !ar. 6his doctrine, ho!e(er, has $een earnestl" contested at the $ar, and no complete collection of the instances illustrating it is to $e found, so far as !e are a!are, in a single pu$lished !or), although man" are referred to and discussed $" the !riters on international la!, nota$le in 4rtolan, egles #nternationales et :iplomatie de la Mer th ed.D li$. 3, c. -, pp. 51+52/ in Cal(o, :roit #nternational 5th ed.D -327+-373/ in :e
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6he earliest acts of an" go(ernment on the su$ject mentioned age 175 U. *. 287 in the $oo)s either emanated from, or !ere appro(ed $", a =ing of 0ngland. #n 1;3 and 1;2, enr" #F issued orders to his admirals and other officers, entitled ?Concerning *afet" for &ishermen ++ De Se!u%itate #% Pis!at%ibus.? <" an order of 4cto$er -2, 1;3, reciting that it !as made pursuant to a treat" $et!een himself and the =ing of &rance, and for the greater safet" of the fishermen of either countr", and so that the" could $e, and carr" on their industr", the more safel" on the sea, and deal !ith each other in peace, and that the &rench =ing had consented that 0nglish fishermen should $e treated li)e!ise, it !as ordained that &rench fishermen might, during the then pending season for the herring fisher", safel" fish for herrings and all other fish from the har$or of ra(elines and the #sland of 6hanet to the mouth of the *eine and the har$or of autoune. And $" an order of 4cto$er 5, 1;2, he too) into his safe conduct and under his special protection, guardianship, and defense all and singular the fishermen of &rance, &landers, and
propert" and goods soe(er, and it !as therefore ordered that such fishermen should not $e interfered !i th, pro(ided the" should comport themsel(es !ell and properl", and should not, $" color of these presents, do or attempt, or presume to do or attempt, an"thing that could prejudice the =ing, or his =ingdom of 0ngland, or his su$jects. 8 "merGs &oedera 332, 51. 6he treat" made 4cto$er -, 15-1, $et!een the 0mperor Charles F and &rancis # of &rance, through their am$assadors, recited that a great and fierce !ar had arisen $et!een them, $ecause of !hich there had $een, $oth $" land and $" sea, fre%uent d epredations and incursions on either side, to the gra(e detriment and intolera$le injur" of the innocent age 175 U. *. 288 su$jects of each, and that a sui ta$le time for the herring fisher" !as at hand, and, $" reason of the sea $eing $eset $" the enem", the fishermen did not dare to go out, !here$" the su$ject of their industr", $esto!ed $" hea(en to alla" the hunger of the poor, !ould !holl" fail for the "ear unless it !ere other!ise pro(ided ++ qu -it" ut #is!atu%ae !))ditas" ad #au#e%u) le&anda) -a)en a !elesti nu)ine !n!essa" !essa%e h! ann )nin debeat" nisi alite% #%&ideatu%. And it !as therefore agreed that the su$jects of each so(ereign, fishing in the sea or e'ercising the calling of fishermen, could and might, until the end of the ne't anuar", !ithout incurring an" attac), depredation, molestation, trou$le, or hindrance soe(er, safel" and freel", e(er"!here in the sea, ta)e herrings and e(er" other )ind of fish, the
12
e'isting !ar $" land and sea not!ithstanding/ and, further, that, during the time aforesaid, no su$ject of either so(ereign should commit, or attempt or presume to commit, an" depredation, force, (iolence, molestation, or (e'ation to or upon such fishermen or their (essels, supplies, e%uipments, nets, and fish, or other goods soe(er trul" appertaining to fishing. 6he treat" !as made at Calais, then an 0nglish possession. #t recites that the am$assadors of the t!o so(ereigns met there at the earnest re%uest of enr" F### and !ith his countenance and in the presence of Cardinal >olse", his chancellor and representati(e. And to!ards the end of the treat", it is agreed that the said =ing and his said representati(e, ?$" !hose means the treat" stands concluded, shall $e conser(ators of the agreements therein, as if thereto $" $oth parties elected and chosen.? :umont, Corps :iplomati%ue, pt. 1, pp. 35-, 353. 6he herring fisher" !as permitted, in time of !ar, $" &rench and :utch edicts in 1532. <"n)ershoe), Huaestiones uris u$licae, li$. 1, c. 3/ 1 0merigon des Assurances, c. , section 9/ c. 1-, section 19, section 8. &rance, from remote times, set the e'ample of alle(iating the e(ils of !ar in fa(or of all coast fishermen. #n the compilation entitled ?Us et Cutu)es de la Me%"? pu$lished $" Cleirac in 1221, and in the third part thereof, containing ?Maritime or Admiralt" urisdiction 33 la +u%isdi!tin de la age 175 U. *. 289
Ma%ine u d4Ad)i%aute ++ as !ell in time of peace as in time of !ar,? article 8; is as follo!sB
?6he admiral ma" in time of !ar accord fishing truces ++ t%es&es #es!he%esses ++ to the enem" and to his su$jects, pro(ided that the enem" !ill li)e!ise accord them to &renchmen.? Cleirac 5. Under this article, reference is made to articles 9 and 79, respecti(el", of the &rench ordinances concerning the admiralt" in 153 and 158, of !hich it is $ut a reproduction. ardessus, Collection de Eoi s Maritimes 319/ - 4rtolan, 51. And Cleirac adds, in a note, this %uotation from &roissartGs ChroniclesB ?&ishermen on the sea, !hate(er !ar there !ere in &rance and 0ngland, ne(er did harm to one another/ so the" are friends, and help one another at n eed ++ Pes!heu%s su% )e%" quelque 'ue%%e qui sit en F%an!e et An'lete%%e" 5a)ais ne se -i%ent )al l4un a l4aut%e6 ain!is snt a)is" et s4aydent l4un a l4aut%e au besin.? 6he same custom !ould seem to ha(e pre(ailed in &rance until to!ards the end of the se(enteenth centur". &or e'ample, in 1275, Eouis I#F and the *tates eneral of olland, $" mutual agreement, granted to :utch and &rench fishermen the li$ert", undistur$ed $" their (essels of !ar, of fishing along the coasts of &rance, olland, and 0ngland. :Gauteri(e et :e Cuss", 6raites de Commerce, pt. 1, (ol. -, p. -78.
12
o$ser(ed the treaties, ha$ituall" carried off her fishermen, !hile their o!n fished in safet". - Falin sur lG4rdonnance de la Marine 1772D 289, 29;/ - 4rtolan 5-/ :e ar of #ndependence. 4n une 5, 1779, Eouis IF#., our all" in that !ar, addressed a letter to his admiral, informing him that the !ish he had al!a"s had of alle(iating, as far as he could, the hardships of !ar, had directed his attention to that class of his su$jects age 175 U. *. 29; !hich de(oted itself to the trade of fishing, and had no other means of li(elihood/ that he had thought that the e'ample !hich he should gi(e to his enemies, and !hich could ha(e no other source than the sentiments of humanit" !hich inspired him, !ould determine them to allo! to fishermen the same facilities !hich he should consent to grant, and that he had therefore gi(en orders to the commanders of all his ships not to distur$ 0nglish fishermen, nor to arrest their (essels laden !ith fresh fish, e(en if not caught $" those (essels/ pro(ided the" had no offensi(e arms, and !ere not pro(ed to ha(e made an" signals creating a suspicion of intelligence !ith the enem", and the admiral !as directed to communicate the =ingGs intentions to all officers under his control. <" a ro"al order in council of o(em$er 2, 178;, the former
orders !ere confirmed, and the capture and ransom, $" a &rench cruiser, of The +hn and Sa%ah" an 0nglish (essel, coming from olland, laden !ith fresh fish, !ere pronounced to $e illegal. - Code des rises ed. 178D 7-1, 9;1, 9;3. Among the standing orders made $" *ir ames Marriott, udge of the 0nglish igh Court of Admiralt", !as one of April 11, 178;, $" !hich it !as ?ordered that all causes of prie of fishing $oats or (essels ta)en from the enem" ma" $e consolidated in one monition, and one sentence or interlocutor", if under fift" tons $urthen, and not more than si' in num$er.? MarriottGs &ormular" . ar, a$stained from interfering !ith the coast fisheries.The 7un' +a!b and +hanna" 1 C. o$. -;/ - 4rtolan 53/ all, 18. #n the treat" of 1785 $et!een the U nited *tates and russia, article -3 !hich !as proposed $" the American Commissioners, ohn Adams,
12
age 175 U. *. 291 unarmed and inha$iting unfortified to!ns, (illages, or places, and in general all others !hose occupations are for the common su$sistence and $enefit of man)ind, shall $e allo!ed to continue their respecti(e emplo"ments, and shall not $e molested in their persons, nor shall their houses or goods $e $urnt or other!ise destro"ed, nor their fields !asted $" the armed force of the enem", into !hose po!er, $" the e(ents of !ar, the" ma" happen to fall/ $ut if an"thing is necessar" to $e ta)en from them for the use of such armed force, the same shall $e paid for at a reasona$le price.? 8 *tat. 92/ 1 =ent Com. 91, note/ >heaton, istor" of the Ea! of ations, 3;2, 3;8. ere !as the clearest e'emption from hostile molestation or seiure of the persons, occupations, houses, and goods of unarmed fishermen inha$iting unfortified places. 6he article !as repeated in the later treaties $et!een the United *tates and russia of 1799 and 18-8. 8 *tat. 17, 38. And :ana, in a note to his edition of >heatonGs #nternational Ea!s, sa"sB ?#n man" treaties and decrees, fishermen catching fish as an article of food are added to the class of persons !hose occupation is not to $e distur$ed in !ar.? >heaton, #nternational Ea! 8th ed.D 35, note 128. *ince the United *tates $ecame a nation, the onl" serious interruptions, so far as !e a re informed, of the general recognition of the e'emption of coast fishing
(essels from hostile capture, arose out of the mutual suspicions and recriminations of 0ngland and &rance during the !ars of the &rench e(olution. #n the first "ears of those !ars, 0ngland ha(ing authoried the capture of &rench fishermen, a decree of the &rench ational Con(ention of 4cto$er -, 1793, directed the e'ecuti(e po!er ?to protest against this conduct, theretofore !ithout e'ample/ to reclaim the fishing $oats seied/ and, in case of refusal, to resort to reprisals.? illiam *cottD in the igh Court of Admiralt" of 0ngland condemned small :utch fishing (essels as prie of !ar. #n one case, the capture !as in April, 1798, and the decree !as made o(em$er 13, 1798. The 7un' +a!b and +hanna" 1 C. o$. -;. #n another case, the decree !as made August -3, 1799. The Nydt $eda!ht" - C. o$. 137, note.
12
&or the "ear 18;;, the orders of the 0nglish and &rench go(ernments and the correspondence $et!een them ma" $e found in $oo)s alread" referred to. 2 Martens 5;3+51-/ 2 *choell, 118+1-;/ - 4rtolan 53, 5. 6he doings for that "ear ma" $e summed up as follo!sB on March -7, 18;;, the &rench go(ernment, un!illing to resort to reprisals, reenacted the orders gi(en $" Eouis IF# in 178;, a$o(e mentioned, prohi$iting an" seiure $" the &rench ships of 0nglish fishermen, unless armed or pro(ed to ha(e made signals to the enem". 4n Ma" 3;, 18;;, the 0nglish go(ernment, ha(ing recei(ed notice of that action of the &rench go(ernment, re(o)ed its order of anuar" -, 1798.
and ?tended onl" to e'asperate the t!o nations, and to put off the term of peace,? and that the &rench go(ernment, ha(ing al!a"s made it ?a ma'im to alle(iate as much as possi$le the e(ils of !ar, could not thin), on its part, of rendering !retched fishermen (ictims of a prolongation of hostilities , and !ould a$stain from all reprisals.? 4n March 12, 18;1, the Addington Ministr", ha(ing come into po!er in 0ngland, re(o)ed the orders of its predecessors against the &rench fishermen, maintaining, ho!e(er, that ?the freedom of fishing !as no!ise founded upon an agreement, $ut upon a simple concession,? that ?this concession !ould $e al!a"s su$ordinate to the con(enience of the moment,? and that ?it !as ne(er e'tended to the great fisher", or to commerce in o"sters or in fish.? And the freedom of the coast fisheries !as again allo!ed on $oth sides. 2 Martens 51/ 2 *choell 1-1/ - 4rtolan, 5/ Manning, Ea! of ations AmosG ed.D -;2. Eord *to!ellGs judgment in The 7un' +a!b and +hanna" 1 C. o$. -;, a$o(e cited, !as much relied on $" the counsel for the United *tates, and deser(es careful consideration. 6he (essel there condemned is descri$ed in the report as ?a small :utch fishing (essel ta)en April, 1798, on her return from the :ogger $an) to olland,? and Eord *to!ell, in deli(ering judgment, saidB
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?#n former !ars, it has not $een usual to ma)e captures of these small fishing (essels/ $ut this rule !as a rule of comit" onl", and not of legal decision/ it has pre(ailed from (ie!s of mutual accommodation $et!een neigh$oring countries, and from tenderness to a poor and industrious order of people. #n the present ! ar, there has, # presume, $een sufficient reason for changing this mode of treatment, and as the" are $rought $efore me for m" judgment, the" must $e referred to the general principles of this Court/ the" fall under the character and description of the last class of cases ++ that is, of ships constantl" and e'clusi(el" emplo"ed in the enem"Gs trade.? And he addedB ?#t is a further satisfaction to me in gi(ing this judgment to o$ser(e that the facts also $ear strong mar)s of a false and fraudulent transaction.? age 175 U. *. 29
comit" onl", and not of legal decision.? Assuming the phrase ?legal decision? to ha(e $een there used, in the sense in !hich courts are accustomed to use it, as e%ui(alent to ?judicial decision,? it is true that, so far as appears, there had $een no such decision on the point in 0ngland. 6he !ord ?comit"? !as apparentl" used $" Eord *to!ell as s"non"mous !ith courtes" or good!ill. or)s, 32;. 6he &rench prie tri$unals, $oth $efore and after Eord *to!ellGs decision, too) a !holl" different (ie! of the general %uestion. #n 178;, as alread" mentioned, an order in council of Eouis IF# had declared illegal the capture $" a &rench cruiser of The +hn and Sa%ah" an 0nglish (essel coming from olland, laden !ith fresh fish. And on Ma" 17, 18;1, !here a ortuguese fishing (essel, !ith her cargo of fish, h a(ing no more cre! than !as needed for her management and for ser(ing the nets, on a trip of se(eral da"s, had $een captured
12
age 175 U. *. 295 in April, 18;1, $" a &rench cruiser, three leagues off the coast of ortugal, the Council of ries held that the capture !as contrar" to ?the principles of humanit" and the ma'ims of international la!,? and decreed that the (essel, !ith the fish on $oard, or the net proceeds of an" that had $een sold, should $e restored to her master. La Nst%a Se'n%a de la Piedad" -5 Merlin, urisprudence, rise Maritime, 3, arts. 1, 3/ S.C. 1 isto"e et :u(erd", rises Maritimes 331/ - :e Cuss", :roit Maritime 122. 6he 0nglish go(ernment, soon after!ards, more than once un%ualifiedl" prohi$ited the molestation of fishing (essels emplo"ed in catching and $ringing to mar)et fresh fish. 4n Ma" -3, 18;2, it !as ?ordered in council that all fishing (essels under russian and other colors, and engaged for the purpose of catching fish and con(e"ing them fresh to mar)et, !ith their cre!s, cargoes, and stores, shall not $e molested on their fishing (o"ages and $ringing the same to mar)et, and that no fishing (essels of this description shall hereafter $e molested. And the ight onora$le the Eords Commissioners of is Majest"Gs 6reasur", the Eords Commissioners of the Admiralt", and the udge of the igh Court of Admiralt", are to gi(e the necessar" directions herein as to them ma" respecti(el" appertain.? 5 C. o$. ;8. Again, in the order in council of Ma" -, 181;, !hich directed that
?all (essels !hich shall ha(e cleared out from an" port so far under the control of &rance or her allies as that heaton, in his :igest of the Ea! of Maritime Captures and ries, pu$lished in 1815, !roteB ?#t has $een usual age 175 U. *. 292 in maritime !ars to e'empt from capture fishing $oats and their cargoes, $oth from (ie!s of mutual accommodation $et!een neigh$oring countries, and from tenderness to a poor and industrious order of people. 6his custom, so honora$le to the humanit" of ci(ilied nations, has fallen into disuse, and it is remar)a$le that $oth &rance and 0ngland mutuall" reproach each other !ith that $reach of good faith !hich has finall" a$olished it.?
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>heaton, Captures, c. -, 18. 6his statement clearl" e'hi$its >heatonGs opinion that the custom had $een a general one, as !ell as that it ought to remain so. is assumption that it had $een a$olished $" the differences $et!een &rance and 0ngland at the close of the last centur" !as hardl" justified $" the state of things !hen he !rote, and has not since $een $orne out. :uring the !ars of the &rench 0mpire, as $oth &rench and 0nglish !riters agree, the coast fisheries !ere left in peace. - 4rtolan 5/ :e
the Me'ican ports,? one of !hich !as that ?Me'ican $oats engaged in fishing on an" part of the coast !ill $e allo!ed to pursue their la$ors unmolested,? and that, on une 1;, 182, those instructions !ere appro(ed $" the a(" :epartment, of !hich Mr.
12
neutral nations. ou !ill capture all (essels under the Me'ican flag that "ou ma" $e a$le to ta)e.? a(" eports of 182, pp. 273, 27. ar, pu$lished in 1821, sa"s that he $egan that !or) during the !ar $et!een the United *tates and Me'ico ?!hile ser(ing on the staff of the commander of the acific *%uadron,? and ?often re%uired to gi(e opinions on %uestions of international la! gro!ing out of the operations of the !ar.? ad the practice of the $loc)ading s%uadron on the !est coast of Me'ico during that !ar, in regard to fishing (essels, differed from that appro(ed $" the a(" :epartment on the east coast, eneral allec) could hardl" ha(e failed to mention it !hen stating the pre(ailing doctrine upon the su$ject as follo!sB age 175 U. *. 298 ?&ishing $oats ha(e also, as a general rule, $een e'empted from the effects of hostilities. As earl" as 15-1, !hile !ar !as raging $et!een Charles F and &rancis, am$assadors from these t!o so(ereigns met at Calais, then 0nglish, and agreed that, !hereas the herring fisher" !as a$out to commence, the su$jects of $oth $elligerents engaged in this pursuit should $e safe and unmolested $" the other part", and should ha(e lea(e to
fish as in time of peace. #n the !ar of 18;;, the ar,? !hich he pu$lished in 1822, as he said in the preface, to suppl" a suita$le te't$oo) for instruction upon the su$ject, ?not onl" in our colleges, $ut also in our t!o great national schools ++ the Militar" and a(al Academies.? #n that a$ridgment, the statement as to fishing $oats !as condensed as follo!sB ?&ishing $oats ha(e also, as a general rule, $een e'empted from the effects of hostilities. &rench !riters consider this e'emption as an esta$lished principle of the
12
modern la! of !ar, and it has $een so recognied in the &rench courts, !hich ha(e restored such (essels !hen captured $" &rench cruisers.? allec)Gs 0lements, c. -;, -1.
?not!ithstanding her alliance !ith &rance and #tal", 0ngland did not follo! the same line of conduct, and her cruisers in the *ea of Aof destro"ed the fisheries, nets, fishing implements, pro(isions, $oats, and e(en the ca$ins of the inha$itants of the coast.?
#n the treat" of peace $et!een the United *tates and Me'ico,
Cal(o -37-. And a ussian !riter on prie la! remar)s that those depredations,
age 175 U. *. 299
?ha(ing $rought ruin on poor fishermen and inoffensi(e traders, could not $ut lea(e a painful impression on the minds of the population, !ithout impairing in the least the resources of the ussian go(ernment.?
in 188, !ere inserted the (er" !ords of the earlier treaties !ith russia, alread" %uoted, for$idding the hostile molestation or seiure in time of !ar of the persons, occupations, houses, or goods of fishermen. 9 *tat. 939, 9;. >hartonGs :igest of the #nternational Ea! of the United *tates, pu$lished $" authorit" of Congress in 1882 and 1887, em$odies eneral allec)Gs fuller statement, a$o(e %uoted, and contains nothing else upon the su$ject. 3 >hart. #nt.Ea! :ig. 35, p. 315/ - allec) 0ng. eds. 1873 and 1878D p. 151. &rance in the Crimean !ar in 185, and in her !ars !ith #tal" in 1859 and !ith erman" in 187;, $" general orders, for$ade her cruisers to trou$le the coast fisheries or to seie an" (essel or $oat engaged therein unless na(al or militar" operations should ma)e it necessar". Cal(o, -37-/ all, 18/ - 4rtolan th ed.D 9/ 1; e(ue de :roit #nternationale 1878D 399.
=atcheno(s)" rattGs ed.D 18.
Cal(o sa"s that, in the Crimean >ar,
12
and other pro(isions intended for the suppl" of the ussian arm". United *er(ice ournal of 1855, pt. 3, pp. 1;8+11-. *ince the 0nglish orders in council of 18;2 and 181;, $efore %uoted, in fa(or of fishing (essels emplo"ed in catching and $ringing to mar)et fresh fish, no instance has $een found in !hich the e'emption from capture of pri(ate coast fishing (essels honestl" pursuing their peaceful industr" has $een denied $" 0ngland or $" an" other nation. And the 0mpire of apan the last state admitted into the ran) of ci(ilied nationsD, $" an ordinance promulgated at the $eginning of its !ar !ith China in August, 189, esta$lished prie courts and ordained that ?the follo!ing enem"Gs (essels are e'empt from detention,? including in the e'emption ?$oats engaged in coast fisheries,? as !ell as ?ships engaged e'clusi(el" on a (o"age of scientific disco(er", philanthroph", or religious mission.? 6a)ahashi, #nternational Ea! 11, 178.
for the speculations of their authors concerning !ha t the la! ought to $e, $ut for trust!orth" e(idence of !hat the la! reall" is. Hiltn &. $uyt" 159 U. *. 113, 159 U. *. 123+12, 159 U. *. -1+-15. >heaton places among the principal sources international la! ?te't !riters of authorit", sho!ing !hat is the appro(ed usage of nations, or the general opinion respecting their mutual conduct, !ith the definitions and modifications introduced $" general consent.? As to these, he forci$l" o$ser(esB ?>ithout !ishing to e'aggerate the importance of these !riters or to su$stitute, in an" case, their authorit" for the principles of reason, it ma" $e affirmed that the" are generall" age 175 U. *. 7;1
#nternational la! is part of our l a!, and must $e ascertained and administered $" the courts of justice of appropriate jurisdiction as often as %uestions of right depending upon it are dul" presented for their determination. &or this purpose, !here there is no treat" and no controlling e'ecuti(e or legislati(e act or judicial decision, resort must $e had to the customs and usages of ci(ilied nations, and, as e(idence of these, to the !or)s of jurists and commentators !ho $" "ears of la$or, research, and e'perience ha(e made themsel(es peculiarl" !ell ac%uainted !ith the su$jects of !hich the" treat. *uch !or)s are resorted to $" judi cial tri$unals not
impartial in their judgment. 6he" are !itnesses of the sentiments and usages of ci(ilied nations, and the !eight of their testimon" increases e(er" time that their authorit" is in(o)ed $" statesmen, and e(er" "ear that passes !ithout the rules laid do!n in their !or)s $eing impugned $" the a(o!al of contrar" principles.? >heaton, #nternational Ea! 8th ed.D, 15. Chancellor =ent sa"sB
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?#n the a$sence of higher and more authoritati(e sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the !ritings of distinguished jurists are regarded as of great consideration on %uestions not settled $" con(entional la!. #n cases !here the principal jurists agree, the presumption !ill $e (er" great in fa(or of the solidit" of their ma'ims, and no ci(ilied nation that does not arrogantl" set all ordinar" la! and justice at defiance !ill (enture to disregard the uniform sense of the esta$lished !riters on international la!.?
Celeb%es du D%it Ma%iti)e des Natins ++ pu$lished in 1852, affirms in the clearest language the e'emption from capture of fishing $oats, sa"ing, in l i$. 1, 6it. 3, 32, that
1 =ent, Com. 18.
age 175 U. *. 7;-
#t !ill $e con(enient, in the first place, to refer to some leading &rench treatises on international la!, !hich deal !ith the %uestion no! $efore us, not as one of the la! of &rance onl", $ut as one determined $" the general consent of ci(ilied nations.
!hich pro(e that the perfect freedom and neutralit" of fishing $oats are not illusor".? 1 :e Cuss", p. -91. And in the chapter so referred to, entitled De la Libe%te et de la Neut%alite Pa%-aite de la Pe!he" $esides references to the edicts and decisions in &rance during the &rench e(olution, is this general statementB
?0nem" ships,? sa" isto"e and :u(erd", in their 6reatise on Maritime ries, pu$lished in 1855, ?are good prie. ot all, ho!e(er, for it results from the unanimous accord of the maritime po!ers that an e'ception should $e made in fa(or of coast fishermen. *uch fishermen are respected $" the enem" so long as the" de(ote themsel(es e'clusi(el" to fishing.? 1 isto"e et :u(erd", 6it. 2, c. 1, p. 31. :e Cuss", in his !or) on the hases and Eeading case s of the Maritime Ea! of ations ++ Phases et Causes
?in time of !ar, the freedom of fishing is respected $" $elligerents/ fishing $oats are considered as neutral/ in la!, as in principle, the" are not su$ject either to capture or to confiscation,? and that in li$. -, c. -;, he !ill state ?se(eral facts and se(eral decisions
?#f one consulted onl" positi(e international la! ++ 9e d%it des 'ens #siti- ++ J$" !hich is e(identl" meant international la! e'pressed in treaties, decrees, or other pu$lic acts, as distinguished from !hat ma" $e implied from custom or usageK, fishing $oats !ould $e su$ject, li)e all other trading (essels, to the la! of prie/ a sort of tacit agreement among all 0uropean nations frees them from it, and se(eral official declarations ha(e confirmed this pri(ilege in fa(or of Ga class of men !hose hard and ill re!arded la$or, commonl" performed $" fee$le and aged hands, is so foreign to the operations of !ar.G?
12
- :e Cuss" 12, 125. 4rtolan, in the fourth edition of his Re'les Inte%natinales et Di#l)atie de la Me%" pu$lished in 182, after stating the general rule that the (essels and cargoes of su$jects of the enem" are la!ful prie, sa"sB ?e(ertheless, custom admits an e'ception in fa(or of $oats engaged in the coast fisher"/ these $oats, as !ell as their cre!s, are free from capture and e'empt from all hostilities. 6he coast+fishing industr" is, in truth, !holl" pacific, and of much less importance in regard to the national !ealth that it ma" produce than maritime commerce or the great fisheries. eaceful and !holl" inoffensi(e, those !ho carr" it on, among !hom !omen are often seen, ma" $e called the har(esters of the territorial seas, since the" confine themsel(es to gathering in the products thereof/ the" are for the most part poor families !ho see) in this calling hardl" more than the means of gaining their li(elihood.? - 4rtolan 51. Again, after o$ser(ing that there are (er" fe! solemn pu$lic treaties !hich ma)e mention of the immunit" of fishing $oats in time of !ar, he sa"sB ?&rom another point of (ie!, the custom !hich sanctions this immunit" is not so general that it can $e considered as ma)ing an a$solute international rule/ $ut it has $een so often put in practice, and, $esides, it accords so !ell !ith the rule in use in !ars on age 175 U. *. 7;3
land, in regard to peasants and hus$andmen, to ! hom coast fishermen ma" $e li)ened, that it !ill dou$tless continue to $e follo!ed in maritime !a rs to come.? - 4rtolan 55. o international jurist of the present da" has a !ider or more deser(ed reputation than Cal(o, !ho, though !riting in &rench, is a citien of the Argentine epu$lic emplo"ed in its diplomatic ser(ice a$road. #n the fifth edition of his great !or) on international la!, pu$lished in 1892, he o$ser(es, in -322, that the international authorit" of decisions in particular cases $" the prie courts of &rance, of 0ngland, and of the Uni ted *tates is lessened $" the fact that the principles on !hich the" are $ased are largel" deri(ed from the internal legislation of each countr", and "et the peculiar character of maritime !ars, !ith other considerations, gi(es to prie jurisprudence a force and importance reaching $e"ond the limits of the countr" in !hich it has pre(ailed. e therefore proposes here to group together a num$er of particular cases proper to ser(e as precedents for the solution of gra(e %uestions of maritime la! in regard to the capture of pri(ate propert" as prie of !ar. #mmediatel", in -327, he goes on to sa"B ?ot!ithstanding the hardships to !hich maritime !ars su$ject pri(ate propert", not!ithstanding the e'tent of the recognied rights of $elligerents, there are generall" e'empted, from seiure and capture, fishing (essels.? #n the ne't section, he addsB ?6his e'ception is perfectl" justicia$le ++ Cette e/!e#tin est #a%-aite)ent 5usti!iable?
12
++ that is to sa", $elonging to judicial jurisdiction or cogniance. Eittre, :ist. &!. usticia$le/ Hans &. Luisiana" 13 U. *. 1, 13 U. *. 15. Cal(o then %uotes 4rtolanGs description, a$o(e cited, of the nature of the coast+fishing industr", and proceeds to refer in detail to some of the &rench precedents, to the acts of the &rench and 0nglish go(ernments in the times of Eouis IF# and of the &rench e(olution, to the position of the United *tates in the !ar !ith Me'ico, and of &rance in later !ars, and to the action of
6he distinction is generall" recognied. - 4rtolan 5/ :e
12
After discussing the statements of other !riters, he appro(es the opinion of 4rtolan as e'pressed in the last sentence a$o(e %uoted from his !or)D and sa"s that, at $ottom, it differs $" a shade onl" from that formulated $" Cal(o and $" some of the erman jurists, and that ?it is more e'act, age 175 U. *. 7;5 !ithout ignoring the imperati(e character of the humane rule in %uestion ++ elle est #lus e/a!te" sans )e!nnait%e le !a%a!te%e i)#e%ati- de la %e'le d4hu)anite dnt il s4a'it.?
6!o recent 0nglish te't !riters cited at the $ar influenced $" !hat Eord *to!ell said a centur" sinceD hesitate to recognie that the e'emption of coast fishing (essels from capture has no! $ecome a settled rule of international la!. et the" $oth admit that there is little real difference in the (ie!s, or in the practice, of 0ngland and of other maritime nations, and that no ci(ilied nation at the present da" !ould molest coast fishing (essels so long as the" !ere peacea$l" pursuing their calling and there !as no danger that the" or their cre!s might $e of militar" use to the enem". all, in 18 of the fourth edition of his 6reatise on #nternational Ea!, after $riefl" s)etching the histor" of the positions occupied $" &rance and 0ngland at different periods, and $" the United *tates in the Me'ican !ar, goes on to sa"B
And in 192 he defines the limits of the rule as follo!sB ?
?#n the foregoing facts there is nothing to sho! that much real difference has e'isted in the practice of the maritime countries. 0ngland does not seem to ha(e $een un!illing to spare fishing (essels so long as the" are harmless, and it does not appear that an" state has accorded them immunit" under circumstances of incon(enience to itself. #t is li)el" that all nations !ould no! refrain from molesting them as a general rule, and !o uld capture age 175 U. *. 7;2 them so soon as an" danger arose that the" or their cre!s might $e of militar" use to the enem", and it is also li)el" that it is impossi$le to grant them a more distinct e'emption.?
12
*o, 6. .Ea!rence, in -;2 of his rinciples of #nternational Ea!, sa"sB ?6he difference $et!een the 0nglish and the &rench (ie! is more apparent than real, for no ci(ilied $elligerent !ould no! capture the $oats of fishermen pl"ing their a(ocation peacea$l" in the territorial !aters of their o!n state, and no jurist !ould seriousl" argue that their immunit" must $e respected if the" !ere used for !arli)e purposes, as !ere the smac)s $elonging to the northern ports of &rance !hen reat
&erdinand Attlma"r, captain in the Austrian a(", in his Manual for a(al 4fficers, pu$lished at Fienna in 187under the auspices of Admiral 6egetthoff, sa"sB ?egarding the capture of enem" propert", an e'ception must $e mentioned, !hich is a uni(ersal custom. &ishing (essels !hich $elong to the adjacent coast, and !hose $usiness "ields onl" a necessar" li(elihood, are, from considerations of humanit", uni(ersall" e'cluded from capture.? 1 Attlma"r 21. #gnacio de Megrin, &irst 4fficial of the *panish
12
egrin, 6it. 3, c. 1, 31;. Carlos 6esta, captain in the ortuguese a(" and professor in the na(al school at Eis$on, in his !or) on u$lic #nternational Ea!, pu$lished in &rench at aris in 1882, !hen discussing the general right of capturing enem" ships, sa"sB ?e(ertheless, in this, customar" la! esta$lishes an e'ception of immunit" in fa(or of coast fishing (essels. &ishing is so peaceful an industr", and is generall" carried on $" so poor and so hard!or)ing a class of men, that it is li)ened, in the territorial !aters of the enem"Gs countr", to the class of hus$andmen !ho gather the fruits of the earth for their li(elihood. 6he e'amples and practice generall" follo!ed esta$lish this humane and $eneficent e'ception as an international rule, and this rule ma" $e considered as adopted $" customar" la! and $" all ci(ilied nations.? 6esta, pt. 3, c. -, in 18
cargo resulting from the fisher". 6his usage, eminentl" humane, goes $ac) to (er" ancient times, and although the immunit" of the fisher" along the coasts ma" not ha(e $een sanctioned $" treaties, "et it is considered toda" as so definitel" esta$lished that the in(iola$ilit" of (essels de(oted to that fisher" is proclaimed $" the pu$licists as a positi(e rule of international la!, and is generall" respected $" the nations. Conse%uentl" !e shall la" do!n the follo!ing ruleB aD (essels $elonging to citiens of the enem" state, and de( oted to fishing age 175 U. *. 7;8 along the coasts, cannot $e su$ject to capture/ $D such (essels, ho!e(er, !ill lose all right of e'emption !hen emplo"ed for a !arli)e purpose/ cD there ma" ne(ertheless $e su$jected to capture (essels de(oted to the great fisher" in the ocean, such as those emplo"ed in the !hale fisher", or in that for seals or sea cal(es.? 3 &iore 1-1. 6his re(ie! of the precedents and authorities on the su$ject appears to us a$undantl" to demonstrate that, at the present da", $" the general consent of the ci(ilied nations of the !orld, and independentl" of an" e'press treat" or other pu$lic act, it is an esta$lished rule of international la!, founded on considerations of humanit" to a poor and industrious order of men, and of the mutual con(enience of $elligerent states, that coast fishing (essels, !ith their implements and supplies, cargoes and cre!s, unarmed and honestl" pursuing their peaceful
12
calling of catching and $ringing in fresh fish, are e'empt from capture as prie of !ar. 6he e'emption, of course, does not appl" to coast fishermen or their (essels if emplo"ed for a !arli)e purpose, or in such a !a" as to gi(e aid or information to the enem", nor !hen militar" or na(al operations create a necessit" to !hich all pri(ate interests must gi(e !a". or has the e'emption $een e'tended to ships or (essels emplo"ed on the high sea in ta)ing !hales or seals or cod or other fish !hich are not $rought fresh to mar)et, $ut are salted or other!ise cured and made a regular article of commerce. 6his rule of international la! is one !hich prie courts administering the la! of nations are $ound to ta)e judicial notice of, and to gi(e effect to, in the a$sence of an" treat" or other pu$lic act of their o!n go(ernment in relation to the matter. Cal(o, in a passage alread" %uoted, distinctl" affirms that the e'emption of coast fishing (essels from capture is perfectl" justicia$le, or, in other !ords, of judicial jurisdiction or cogniance. Cal(o -328. or are judicial precedents !anting in support of the (ie! that this e'emption, or a some!hat analogous one, should $e recognied and declared $" a prie court. age 175 U. *. 7;9 <" the practice of all ci(ilied nations, (essels emplo"ed onl" for the purposes of disco(er" or science are
considered as e'empt from the contingencies of !ar, and therefore not su$ject to capture. #t has $een usual for the go(ernment sending out such an e'pedition to gi(e notice to other po!ers, $ut it is not essential. 1 =ent, Com. 91, note/ allec), c. -;, --/ Cal(o -372/ all 138. #n 1813, !hile the United *tates !ere at !ar !ith 0ngland, an American (essel on her (o"age from #tal" to the United *tates !as captured $" an 0nglish ship, and $rought into alifa', in o(a *cotia, and, !ith her cargo, condemned as la!ful prie $" the court of (ice admiralt" there.
12
#n 1821, during the !ar of the e$ellion, a similar decision !as made in the :istrict Court of the United *tates for the 0astern :istrict of enns"l(ania in regard to t!o cases of $oo)s $elonging and consigned to a uni(ersit" in orth Carolina. udge C ad!alader, in ordering these $oo)s to $e li$erated from the custod" of the marshal and restored to the agent of the uni(ersit", saidB ?6hough this claimant, as the resident of a hostile district, !ould not $e entitled to restitution of the su$ject of a commercial ad(enture in $oo)s, the purpose of the shipment in %uestion gi(es to it a different age 175 U. *. 71; character. 6he United *tates, in prosecuting hostilities for the restoration of their constitutional authorit", are compelled incidentall" to confiscate propert" captured at sea, of !hich the proceeds !ould other!ise increase the !ealth of that district.
a$o(e maintained, of the dut" of a prie court to ta)e judicial notice of a rule of international la!, esta$lished $" the general usage of ci(ilied nations, a s to the )ind of propert" su$ject to capture.
e then referred to the decision in o(a *cotia, and to the &rench decisions upon cases of fishing (essels, as precedents for the decree !hich he !a s a$out to pronounce, and he added that, !ithout an" such precedents, he should ha(e had no difficult" in li$erating these $oo)s. The A)elia" hiladelphia 17.
?6he uni(ersal practice of for$earing to seie and confiscate de$ts and credits, the principle uni(ersall" recei(ed that the right to them re(i(es on the restoration of peace, !ould seem to pro(e that !ar is not an a$solute confiscation of this propert", $ut simpl" confers the right of confiscation,?
#n *%,n &. United States" 8 Cranch 11;, there are e'pressions of Chief ustice Marshall !hich, ta)en $" themsel(es, might seem inconsistent !ith the position
and againB
12
?6he modern rule, then, !ould seem to $e that tangi$le propert" age 175 U. *. 711 $elonging to an enem", and found in the countr" at the commencement of !ar, ought not to $e immediatel" confiscated, and in almost e(er" commercial treat", an article is inserted stipulating for the right to !ithdra! such propert".? 8 Cranch 1- U. *. 1-3+1-5. 6he decision that enem" propert" on land, !hich $" the modern usage of nations is not su$ject to capture as prie of !ar, cannot $e condemned $" a prie court, e(en $" direction of the 0'ecuti(e, !ithout e'press authorit" from Congress appears to us to repel an" inference that coast fishing (essels, !hich are e'empt $" the general consent of ci(ilied nations from capture and !hich no act of Congress or order of the resident has e'pressl" authoried to $e ta)en and confiscated, must $e condemned $" a prie court for !ant of a distinct e'emption in a treat" or other pu$lic act of the go(ernment. 6o this su$ject in more than one aspect are singularl" applica$le the !ords uttered $" Mr. ustice *trong, spea)ing for this CourtB ?Undou$tedl" no single nation can change the la! of the sea. 6he la! is of uni(ersal o$ligation, and no statute of one or t!o nations can create o$ligations for the !orld. Ei)e all the la!s of nations, it rests upon the common
consent of ci(ilied communities. #t is of force not $ecause it !as prescri$ed $" an" superior po!er, $ut $ecause it has $een generall" accepted as a rule of conduct. >hate(er ma" ha(e $een its origin, !hether in the usages of na(igation, or in the ordinances of maritime states, or in $oth, it has $ecome the la! of the sea onl" $" the concurrent sanction of those nations !ho ma" $e said to constitute the commercial !orld. Man" of the usages !hich pre(ail, and !hich ha(e the force of la!, dou$tless originated in the positi(e prescriptions of some single state, !hich !ere at first of limited effect, $ut !hich, !hen generall" accepted, $ecame of uni(ersal o$ligation.? ?6his is not gi(ing to the statutes of an" nation e'traterritorial effect. #t is not treating them as general maritime la!s, $ut it is recognition of the historical fact that, $" common consent of man)ind these rules ha(e $een ac%uiesced in as of general o$ligation. 4f that fact !e thin) !e ma" ta)e judicial notice. &oreign municipal la!s age 175 U. *. 71must indeed $e pro(ed as facts, $ut it is not so !ith the la! of nations.? The S!tia" 1 >all. 17;, 81 U. *. 187+188.
6he position ta)en $" the United *tates during the recent !ar !ith *pain !as %uite in accord !ith the rule of international la!, no! generall" recognied $" ci(ilied nations, in regard to coast fishing (essels.
12
4n April -1, 1898, the *ecretar" of the a(" ga(e instructions to Admiral *ampson, commanding the orth Atlantic *%uadron, to ?immediatel" institute a $loc)ade of the north coast of Cu$a, e'tending from Cardenas on the east to
4n April -8, 1898 after the capture of the t!o fishing (essels no! in %uestionD, Admiral *ampson telegraphed to the *ecretar" of the a(" as fol lo!sB ?# find that a large num$er of fis hing schooners are attempting to get into a(ana from their fishing grounds near the &lorida reefs and coasts. 6he" are generall" manned $" e'cellent seamen, $elonging age 175 U. *. 713 to the maritime inscription of *pain, !ho ha(e alread" ser(ed in the *panish na(", and !ho are lia$le to further ser(ice. As these trained men are na(al reser(es, most (alua$le to the *paniards as artiller"men, either afloat or ashore, # recommend that the" should $e detained prisoners of !ar, and that # should $e authoried to deli(er them to the commanding officer of the arm" at =e" >est.? 6o that communication the *ecretar" of the a(", on April 3;, 1898, guardedl" ans!eredB ?*panish fishing (essels attempting to (iolate $loc)ade are su$ject, !ith cre!, to capture, and an" such (essel or cre! considered li)el" to aid enem" ma" $e detained.?
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their cre!s should not $e interfered !ith so long as the" neither attempted to (iolate the $loc)ade nor !ere considered li)el" to aid the enem". The Paquete Habana" as the record sho!s, !as a fishing sloop of -5 tons $urden, sailing under the *panish flag, running in and out of a(ana, and regularl" engaged in fishing on the coast of Cu$a. er cre! consisted of $ut three men, including the master, and, according to a common usage in coast fisheries, had no interest in the (essel, $ut !ere entitled to t!o+thirds of her catch, the other third $elonging to her *panish o!ner, !ho, as !ell as the cre!, resided in a(ana. 4n her last (o"age, she sailed from a(ana along the coast of Cu$a, a$out t!o hundred miles, and fished for t!ent"+fi(e da"s off the cape at the !est end of the island, !ithin the territorial !aters of *pain, and !as going $ac) to a(ana !ith her cargo of li(e fish !hen she !as captured $" one of the $loc)ading s%uadron on April -5, 1898. *he had no arms or ammunition on $oard/ she had no )no!ledge of the $loc)ade, or e(en of the !ar, until she !as stopped $" a $loc)ading (essel/ she made no attempt to run the $loc)ade, and no resistance at the time of the capture/ nor !as there an" e(idence
age 175 U. *. 71 !hate(er of li)elihood that she or her cre! !ould aid the enem". #n the case of the Lla" the onl" differences in the facts !ere that she !as a schooner of 35 tons $urden, and had a cre! of si' men, including the master/ that, after
lea(ing a(ana and proceeding some t!o hundred miles along the coast of Cu$a, she !ent on, a$out one hundred miles farther, to the coast of ucatan, and there fished for eight da"s, and that, on her return, !hen near
12
and adjudge that the capture !as unla!ful and !ithout pro$a$le cause, and it is therefore, in each case O%de%ed" that the decree of the district court $e re(ersed, and the proceeds of the sale of the (essel, together !ith the proceeds of an" sale of her cargo, $e restored to the claimant, !ith damages and costs.
age 175 U. *. 715 M. C#0& U*6#C0 &UEE0, !ith !hom c oncurred M. U*6#C0 AEA and M. U*6#C0 Mc=0A, dissentingB 6he district court held these (essels and their cargoes lia$le $ecause not ?satisfied that, as a matter of la!, !ithout an" ordinance, treat", or proclamation, fishing (essels of this class are e'empt from seiure.? 6his Court holds other!ise not $ecause such e'emption is to $e found in an" treat", legislation, proclamation, or instruction granting it, $ut on the ground that the (essels !ere e'empt $" reason of an esta$lish ed rule of international la! applica$le to them !hich it is the dut" of the court to enforce. # am una$le to conclude that there is an" such esta$lished international rule, or that this Court can properl" re(ise action !hich must $e treated as ha(ing $een ta)en in the ordinar" e'ercise of discretion in the conduct of !ar.
#n cannot $e maintained ?that modern usage constitutes a rule !hich acts directl" upon the thing itself $" its o!n force, and not through the so(ereign po!er.? 6hat position !as disallo!ed in *%,n &. United States" 8 Cranch 11;, 1- U. *. 1-8, and Chief ustice Marshall saidB ?6his usage is a guide !hich the so(ereign follo!s or a$andons at his !ill. 6he rule, li)e other precepts of moralit", of humanit", and e(en of !isdom, is addressed to the judgment of the so(ereign, and although it cannot $e disregarded $" him !ithout o$lo%u", "et it ma" $e disregarded. 6he rule is in its nature fle'i$le. #t is su$ject to infinite modification. #t is not an immuta$le rule of la!, $ut depends on political considerations !hich ma" continuall" (ar".? 6he %uestion in that case related to the confiscation of the propert" of the enem" on land !i thin our o!n territor", and it !as held that propert" so situated could not $e confiscated !ithout an act of Congress. 6he Chief ustice continuedB ?Commercial nations in the situation of the United *tates ha(e al!a"s a considera$le %uantit" of propert" in the possession of their neigh$ors. >hen !ar $rea)s out, the %uestion !hat shall $e done !ith enem" propert" in our countr" is a age 175 U. *. 712 %uestion rather of polic" than of la!. 6he rule !hich !e appl" to the propert" of our enem" !ill $e applied $" him
12
to the propert" of our citiens. Ei)e all other %uestions of polic", it is proper for the consideration of a department !hich can modif" it at !ill, not for the consideration of a department !hich can pursue onl" the la! as it is !ritten. #t is proper for the consideration of the legislature, not of the e'ecuti(e or judiciar".? 6his case in(ol(es the capture of enem"Gs propert" on the sea, and e'ecuti(e action, and if the position that the alleged rule e/ #%#%i &i'%e limits the so(ereign po!er in !ar $e rejected, then # understand the contention to $e that $" reason of the e'istence o f the rule, the proclamation of April -2 must $e read as if it contained the e'emption in terms, or the e'emption must $e allo!ed $ecause the capture of fishing (essels of this class !as not specificall" authoried. 6he pream$le to the proclamation stated, it is true, that it !as desira$le that the !ar ?should $e conducted upon principles in harmon" !ith the present (ie!s of nations and sanctioned $" their recent practice,? $ ut the reference !as to the intention of the go(ernment ?not to resort to pri(ateering, $ut to adhere to the rules of the :eclaration of aris,? and the proclamation spo)e for itself. 6he language of the pream$le did not carr" the e'emption in terms, and the real %uestion is !hether it must $e allo!ed $ecause not affirmati(el" !ithheld ++ or, in other !ords, $ecause such captures !ere not in terms directed. 6hese records sho! that the *panish sloop Paquete Habana ?!as captured as a prie of !ar $" the U.*.*. Castine? on April -5, and ?!as deli(ered? $"
the Castine4s commander ?to ear Admiral >m. 6. *ampson commanding the orth Atlantic *%uadronD,? and thereupon ?turned o(er? to a prie master !ith instructions to proceed to =e" >est. And that the *panish schooner Lla ?!as captured as a prie of !ar $" the U.*.*. Dl#hin"? April -7, and ?!as deli(ered? $" the Dl#hin4s commander ?to ear Admiral >m. 6. *ampson commanding the orth Atlantic *%uadronD,? and thereupon ?turned o(er? to a prie master !ith instructions to proceed to =e" >est. age 175 U. *. 717 6hat the (essels !ere accordingl" ta)en to =e" >est and there li$eled, and that the decrees of condemnation !ere entered against them Ma" 3;. #t is impossi$le to concede that the Admiral ratified these captures in disregard of esta$lished international la! and the proclamation, or that the resident, if he had $een of opinion that there !as an" infraction of la! or proclamation, !ould not ha(e inter(ened prior to condemnation. 6he correspondence of April -8, 3;, $et!een the Admiral and the *ecretar" of the a(", %uoted from in the principal opinion, !as entirel" consistent !ith the (alidit" of the captures. 6he %uestion put $" the Admiral related to the detention as prisoners of !ar of the persons manning the fishing schooners ?attempting to get into a(ana.?
12
oncom$atants are not so detained e'cept for special reasons. *ailors on $oard enem"Gs trading (essels are made prisoners $ecause of their fitness for immediate use on ships of !ar. 6herefore the Admiral pointed out the (alue of these fishing seamen to the enem", and ad(ised their detention. 6he *ecretar" replied that if the (essels referred to !ere ?attempting to (iolate $loc)ade,? the" !ere su$ject ?!ith cre!? to capture, and also that the" might $e detained if ?considered li)el" to aid enem".? 6he point !as !hether these cre!s should $e made prisoners of !ar. 4f course, the" !ould $e lia$le to $e if in(ol(ed in the guilt of $loc)ade running, and the *ecretar" agreed that the" might $e on the other ground in the AdmiralGs discretion. All this !as in accordance !ith the rules and usages of international la!, !ith !hich, !hether in peace or !ar, the na(al ser(ice has al!a"s $een necessaril" familiar.
cargoes, and cre!s, unarmed, and honestl" pursuing their peaceful calling of catching and $ringing in of fresh fish, are e'empt from capture as prie of !ar.? 6his, it is said, is a rule ?!hich prie courts, administering the la! of nations, are $ound to ta)e judicial notice of, and to gi(e effect to, in the a$sence of treat" or other pu$lic act of their o!n go(ernment.? At the same time, it is admitted that the alleged e'emption does not appl" ?to coast fishermen or their (essels i f emplo"ed for a !arli)e purpose or in such a !a" as to gi(e aid or information to the enem", nor !hen militar" or na(al operations create a necessit" to !hich all pri(ate interests must gi(e !a",?
# come then to e'amine the proposition and further that the e'emption has not ?that at the present da", $" the general consent of the ci(ilied nations of the !orld and independentl" of an" e'press treat" or other pu$lic act, i t is an esta$lished rule of international la!, founded on considerations of humanit" to a poor and industrious order of men, and of the mutual con(enience of $elligerent states, that coast fishing (essels, !ith their implements and supplies, age 175 U. *. 718
?$een e'tended to ships or (essels emplo"ed on the high sea in ta)ing !hales or seals, or cod or other fish !hich are not $rought fresh to mar)et, $ut are salted or other!ise cured and made a regular article of commerce.? #t !ill $e percei(ed that the e'ceptions reduce the supposed rule to (er" narro! limits, re%uiring a careful e'amination of the facts in order to ascertain its applica$ilit", and the decision appears to me to go
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altogether too far in respect of dealing !ith captures directed or ratified $" the officer in command.
onl" so as to the o!ners, $ut as to the masters and cre!s. 6he principle !hich e'empts the hus$andman and his instruments of la$or e'empts the industr" in !hich he is engaged, and is not applica$le in protection of the continuance of transactions of such character and e'tent as these. #n truth, the e'emption of fishing craft i s essentiall" an act of grace, and not a matter of right, and it is e'tended or denied as the e'igenc" is $elie(ed to demand. #t is, said *ir >illiam *cott, ?a rule of comit" onl", and not of legal decision.? 6he modern (ie! is thus e'pressed $" Mr. allB ?0ngland does not seem to ha(e $een un!illing to spare fishing (essels so long as the" are harmless, and it does not appear that an" state has accorded them immunit" under circumstances of incon(enience to itself. #t is li)el" that all nations !ould no! refrain from molesting them as a general rule, and !ould capture them so soon as an" danger arose that the" or their cre!s might $e of militar" use to the enem", and it is also li)el" that it is impossi$le to grant them a more distinct e'emption.? #n the Crimean !ar, 185+55, none of the orders in council, in terms, either e'empted or included fishing (essels, "et the allied s%uadrons s! ept the *ea of Aof of all craft capa$le of furnishing the means of transportation, and the 0nglish admiral in the ulf of &inland directed the destruction of all ussian coasting (essels not of sufficient (alue to $e detained as pries
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e'cept ?$oats or small craft !hich ma" $e found empt" at anchor, and not traffic)ing.? #t is difficult to concei(e of a la! of the sea of uni(ersal o$ligation to !hich reat
6he treaties !ith russia of 1785, 1799, and 18-8, and of 188 !ith Me'ico, in e'empting fishermen, ?una rmed and inha$iting unfortified to!ns, (illages, or places,? did not e'empt fishing (essels from seiure as prie, and these captures e(idence the con(ictions entertained and acted on in the late !ar !ith *pain.
age 175 U. *. 7-; am not a!are of ade%uate foundation for imputing to this countr" the adoption of an" other than the 0nglish rule. #n his lectures on #nternational Ea! at the a(al Ea! College, the late :r. &reeman *no! laid it do!n that the e'emption could not $e asserted as a rule of international la!. 6hese lectures !ere edited $" Commodore *toc)ton and pu$lished under the direction of the *ecretar" of the a(" in 1895, and, $" that department, in a second edition, in 1898, so that in addition to the !ell )no!n merits of their author, the" possess the !eight to $e attri$uted to the official imprimatur. either our treaties nor settled practice are opposed to that conclusion.
#n is needless to re(ie! the speculations and repetitions of the !riters on international la!. 4rtolan, :e
#n (ie! of the circumstances s urrounding the $rea)ing out of the Me'ican !ar, Commodore Conner, commanding the ome *%uadron, on Ma" 1, 182, directed his officers, in respect of $loc)ade, not to molest ?Me'ican $oats engaged e'clusi(el" in fishing on an" part of the coast,? presuma$l" small $oats in pro'imit" to the shore, !hile on the acific coast, Commodore *toc)ton, in the succeeding August, ordered the capture of ?all (essels under the Me'ican flag.?
0'emptions ma" $e designated in ad(ance or granted according to circumstances, $ut carr"ing on !ar in(ol(es the infliction of the hardships of ! ar, at least to the e'tent that the seiure or destruction of enem"Gs propert" on sea need not $e specificall" authoried in order to $e accomplished.
