Under the Act of Congress of March 3, 1891, c. 517, this Court
has jurisdiction of appeals from all final sentences and decrees in
prize causes, without regard to the amount in dispute and without
any certificate of the district judge as to the importance of the
particular case.
International law is part of our law, and must be ascertained
and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are
duly presented for their determination. For this purpose, where
there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages
of civilized nations, and, as evidence of these, to the works of
jurists and commentators, not for the speculations of their authors
concerning what the law ought to be, but for trustworthy evidence
of what the law really is.
At the present day, by the general consent of the civilized
nations of the world and independently of any express treaty or
other public act, it is an established rule of international law
that coast fishing vessels, with their implements and supplies,
cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from
capture as prize of war. And this rule is one which prize courts,
administering the law of nations, are bound to take judicial notice
of, and to give effect to, in the absence of any treaty or other
public act of their own government in relation to the matter.
At the breaking out of the recent war with Spain, two fishing
smacks -- the one a sloop, 43 feet long on the keel and of 25 tons
burden, and with a crew of three men, and the other a schooner, 51
feet long on the keel and of 35 tons burden, and with a crew of six
men -- were regularly engaged in fishing on the coast of Cuba,
sailing under the Spanish flag, and each owned by a Spanish
subject, residing in Havana; her crew, who also resided there, had
no interest in the vessel, but were entitled to shares, amounting
in all to two thirds, of her catch, the other third belonging to
her owner, and her cargo consisted of fresh fish, caught by her
crew from the sea, put on board as they were caught, and kept and
sold alive. Each vessel left Havana on a coast fishing voyage, and
sailed along the coast of Cuba about two hundred miles to the west
end of the island; the sloop there fished for twenty-five days in
the territorial waters of Spain, and the schooner extended her
fishing trip a hundred
Page 175 U. S. 678
miles farther across the Yucatan Channel, and fished for eight
days on the coast of Yucatan. On her return, with her cargo of live
fish, along the coast of Cuba, and when near Havana, each was
captured by one of the United States blockading squadron. Neither
fishing vessel had any arms or ammunition on board, had any
knowledge of the blockade, or even of the war, until she was
stopped by a blockading vessel, made any attempt to run the
blockade, or any resistance at the time of her capture, nor was
there any evidence that she, or her crew, was likely to aid the
enemy.
Held that both captures were unlawful, and without
probable cause.
The cases are stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
These are two appeals from decrees of the District Court of the
United States for the Southern District of Florida condemning two
fishing vessels and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana,
and regularly engaged in fishing on the coast of Cuba; sailed under
the Spanish flag; was owned by a Spanish subject of Cuban birth,
living in the City of Havana; was commanded by a subject of Spain,
also residing in Havana, and her master and crew had no interest in
the vessel, but were entitled to shares, amounting in all to
two-thirds, of her catch, the other third belonging to her owner.
Her cargo consisted of fresh fish, caught by her crew from the sea,
put on board as they were caught, and kept and sold alive. Until
stopped by the blockading squadron, she had no knowledge of the
existence of the war or of any blockade. She had no arms or
ammunition on board, and made no attempt to run the blockade after
she knew of its existence, nor any resistance at the time of the
capture.
The Paquete Habana was a sloop, 43 feet long on the
keel,
Page 175 U. S. 679
and of 25 tons burden, and had a crew of three Cubans, including
the master, who had a fishing license from the Spanish government,
and no other commission or license. She left Havana March 25, 1898,
sailed along the coast of Cuba to Cape San Antonio at the western
end of the island, and there fished for twenty-five days, lying
between the reefs off the cape, within the territorial waters of
Spain, and then started back for Havana, with a cargo of about 40
quintals of live fish. On April 25, 1898, about two miles off
Mariel, and eleven miles from Havana, she was captured by the
United States gunboat
Castine.
The Lola was a schooner, 51 feet long on the keel, and
of 35 tons burden, and had a crew of six Cubans, including the
master, and no commission or license. She left Havana April 11,
1898, and proceeded to Campeachy Sound, off Yucatan, fished there
eight days, and started back for Havana with a cargo of about
10,000 pounds of live fish. On April 26, 1898, near Havana, she was
stopped by the United States steamship
Cincinnati, and was
warned not to go into Havana, but was told that she would be
allowed to land at Bahia Honda. She then changed her course, and
put for Bahia Honda, but on the next morning, when near that port,
was captured by the United States steamship
Dolphin.
Both the fishing vessels were brought by their captors into Key
West. A libel for the condemnation of each vessel and her cargo as
prize of war was there filed on April 27, 1898; a claim was
interposed by her master on behalf of himself and the other members
of the crew, and of her owner; evidence was taken, showing the
facts above stated, and on May 30, 1898, a final decree of
condemnation and sale was entered,
"the court not being satisfied that as a matter of law, without
any ordinance, treaty, or proclamation, fishing vessels of this
class are exempt from seizure."
Each vessel was thereupon sold by auction; the
Paquete
Habana for the sum of $490 and the
Lola for the sum
of $800. There was no other evidence in the record of the value of
either vessel or of her cargo.
It has been suggested in behalf of the United States that
Page 175 U. S. 680
this Court has no jurisdiction to hear and determine these
appeals because the matter in dispute in either case does not
exceed the sum or value of $2,000, and the district judge has not
certified that the adjudication involves a question of general
importance.
The suggestion is founded on § 695 of the Revised Statutes,
which provides that
"an appeal shall be allowed to the Supreme Court from all final
decrees of any district court in prize causes, where the matter in
dispute, exclusive of costs, exceeds the sum or value of two
thousand dollars, and shall be allowed, without reference to the
value of the matter in dispute, on the certificate of the district
judge that the adjudication involves a question of general
importance."
The Judiciary Acts of the United States, for a century after the
organization of the government under the Constitution, did impose
pecuniary limits upon appellate jurisdiction.
In actions at law and suits in equity the pecuniary limit of the
appellate jurisdiction of this Court from the circuit courts of the
United States was for a long time fixed at $2000. Acts of September
24, 1789, c. 20, § 22; 1 Stat. 84; March 3, 1803, c. 40; 2
Stat. 244;
Gordon v.
Ogden, 3 Pet. 33; Rev.Stat. §§ 691, 692.
In 1875, it was raised to $5,000. Act of February 16, 1875, c. 77,
§ 3; 18 Stat. 316. And in 1889 this was modified by providing
that, where the judgment or decree did not exceed the sum of
$5,000, this Court should have appellate jurisdiction upon the
question of the jurisdiction of the circuit court, and upon that
question only. Act of February 25, 1889, c. 236, § 1; 25 Stat.
693;
Parker v. Ormsby, 141 U. S. 81.
As to cases of admiralty and maritime jurisdiction, including
prize causes, the Judiciary Act of 1789, in § 9, vested the
original jurisdiction in the district courts, without regard to the
sum or value in controversy, and in § 21 permitted an appeal
from them to the circuit courts where the matter in dispute
exceeded the sum or value of $300. 1 Stat. 77, 83, c. 20;
The Betsey, 3
Dall. 6,
3 U.S. 16;
The Amiable
Nancy, 3 Wheat. 546;
Stratton v.
Jarvis, 8 Pet. 4,
33 U. S. 11. By
the Act of March 3, 1803, c. 40, appeals to the circuit court were
permitted from all final decrees of a district court where
Page 175 U. S. 681
the matter in dispute exceeded the sum or value of $50, and from
the circuit courts to this Court in all cases "of admiralty and
maritime jurisdiction, and of prize or no prize" in which the
matter in dispute exceeded the sum or value of $2,000. 2 Stat. 244;
Jenks v. Lewis, 3 Mason 503;
Stratton v. Jarvis,
above cited;
The Admiral, 3
Wall. 603,
70 U. S. 612.
The acts of March 3, 1863, c. 86, § 7, and June 30, 1864, c.
174, § 13, provided that appeals from the district courts in
prize causes should lie directly to this Court, where the amount in
controversy exceeded $2,000, or "on the certificate of the district
judge that the adjudication involves a question of difficulty and
general importance." 12 Stat. 760; 13 Stat. 310. The provision of
the act of 1803, omitting the words "and of prize or no prize," was
reenacted in § 692 of the Revised Statutes, and the provision
of the act of 1864, concerning prize causes, was substantially
reenacted in § 695 of the Revised Statutes, already
quoted.
But all this has been changed by the Act of March 3, 1891, c.
517, establishing the circuit courts of appeals and creating a new
and complete scheme of appellate jurisdiction, depending upon the
nature of the different cases, rather than upon the pecuniary
amount involved. 26 Stat. 826.
By that act, as this Court has declared, the entire appellate
jurisdiction from the circuit and district courts of the United
States was distributed, "according to the scheme of the act,"
between this Court and the circuit courts of appeals thereby
established, "by designating the classes of cases" of which each of
these courts was to have final jurisdiction.
McLish v.
Roff, 141 U. S. 661,
141 U. S. 666;
American Construction Co. v. Jacksonville Railway,
148 U. S. 372,
148 U. S. 382;
Carey v. Houston & Texas Railway, 150 U.
S. 170,
150 U. S.
179.
The intention of Congress, by the act of 1891, to make 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 clearly appears upon examination of the leading provisions
of the act.
Section 4 provides that no appeal, whether by writ of error or
otherwise, shall hereafter be taken from a district court
Page 175 U. S. 682
to a circuit court, but that all appeals, by writ of error or
otherwise, from the district courts "shall only be subject to
review" in this Court or in the circuit court of appeal "as is
hereinafter provided," and "the review by appeal, by writ of error,
or otherwise" from the circuit courts, "shall be had only" in this
Court or in the circuit court of appeals, "according to the
provisions of this act regulating the same."
Section 5 provides that "appeals or writs of error may be taken
from the district courts, or from the existing circuit courts,
direct to the Supreme Court, in the following cases:"
First.
"In any case in which the jurisdiction of the court is in issue;
in such cases, the question of jurisdiction alone shall be
certified to the Supreme Court from the court below for
decision."
This clause includes "any case," without regard to amount, in
which the jurisdiction of the court below is in issue, and differs
in this respect from the act of 1889, above cited.
Second. "From the final sentences and decrees in prize causes."
This clause includes the whole class of "the final sentences and
decrees in prize causes," and omits all provisions of former acts
regarding amount in controversy, or certificate of a district
judge.
Third. "In cases of conviction of a capital or otherwise
infamous crime." This clause looks to the nature of the crime, and
not to the extent of the punishment actually imposed. A crime which
might have been punished by imprisonment in a penitentiary is an
infamous crime, even if the sentence actually pronounced is of a
small fine only.
Ex Parte Wilson, 114 U.
S. 417,
114 U. S. 426.
Consequently, such a sentence for such a crime was subject to the
appellate jurisdiction of this Court, under this clause, until this
jurisdiction, so far as regards infamous crimes, was transferred to
the circuit court of appeals by the Act of January 20, 1897, c. 68.
29 Stat. 492.
Fourth. "In any case, that involves the construction or
application of the Constitution of the United States."
Fifth.
"In any case in which the constitutionality of any law of the
United States, or the validity or construction of any treaty made
under its authority, is drawn in question. "
Page 175 U. S. 683
Sixth. "In any case in which the Constitution or law of a state
is claimed to be in contravention of the Constitution of the United
States."
Each of these last three clauses, again, includes "any case" of
the class mentioned. They all relate to what are commonly called
federal questions, and cannot reasonably be construed to have
intended that the appellate jurisdiction of this Court over such
questions should be restricted by any pecuniary limit -- especially
in their connection with the succeeding sentence of the same
section:
"Nothing in this act shall affect the jurisdiction of the
Supreme Court in cases appealed from the highest court of a state,
nor the construction of the statute providing for review of such
cases."
Writs of error from this Court to review the judgments of the
highest court of a state upon such questions have never been
subject to any pecuniary limit. Act of September 24, 1789, c. 20,
§ 25; 1 Stat. 85;
Buel v. Van
Ness, 8 Wheat. 312; Act of February 5, 1867, c. 28,
§ 2; 14 Stat. 386; Rev.Stat. § 709.
By section 6 of the act of 1891, this Court is relieved of much
of the appellate jurisdiction that it had before; the appellate
jurisdiction from the district and circuit courts "in all cases
other than those provided for in the preceding section of this act,
unless otherwise provided by law," is vested in the circuit court
of appeals, and its decisions in admiralty cases, as well as in
cases arising under the criminal laws, and in certain other classes
of cases, are made final, except that that court may certify to
this Court questions of law, and that this Court may order up the
whole case by writ of certiorari. It is settled that the words
"unless otherwise provided by law," in this section, refer only to
provisions of the same act, or of contemporaneous or subsequent
acts, and do not include provisions of earlier statutes.
Lau Ow
Bew v. United States, 144 U. S. 47,
144 U. S. 57;
Hubbard v. Soby, 146 U. S. 56;
American Construction Co. v. Jacksonville Railway,
148 U. S. 372,
148 U. S.
383.
The act of 1891 nowhere imposes a pecuniary 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
States. The only pecuniary limit imposed is one of
Page 175 U. S. 684
$1,000 upon the appeal to this Court of a case which has been
once decided on appeal in the circuit court of appeals, and in
which the judgment of that court is not made final by section 6 of
the act.
Section 14 of the act of 1891, after specifically repealing
section 691 of the Revised Statutes and section 3 of the act of
February 16, 1875, further provides that
"all acts and parts of acts relating to appeals or writs of
error, inconsistent with the provisions for review by appeals or
writs of error in the preceding sections 5 and 6 of this act, are
hereby repealed."
26 Stat. 829, 830. The object of the specific repeal, as this
Court has declared, was to get rid of the pecuniary limit in the
acts referred to.
McLish v. Roff, 141 U.
S. 661,
141 U. S. 667.
And, although neither section 692 nor section 695 of the Revised
Statutes is repealed by name, yet, taking into consideration the
general repealing clause, together with the affirmative provisions
of the act, the case comes within the reason of the decision in an
analogous case, in which this Court said:
"The provisions relating to the subject matter under
consideration are, however, so comprehensive, as well as so variant
from those of former acts, that we think the intention to
substitute the one for the other is necessarily to be inferred, and
must prevail."
Fisk v. Henarie, 142 U. S. 459,
142 U. S.
468.
The decision in this Court in the recent case of
United
States v. Rider, 163 U. S. 132,
affords an important, if not controlling, precedent. From the
beginning of this century until the passage of the act of 1891,
both in civil and in criminal cases, questions of law upon which
two judges of the circuit court were divided in opinion might be
certified by them to this Court for decision. Act of April 29,
1802, c. 31, § 6; 2 Stat. 159; June 1, 1872, c. 255, § 1;
17 Stat.196; Rev.Stat. §§ 650-652, 693, 697;
Insurance Co. v.
Dunham, 11 Wall. 1,
78 U. S. 21;
United States v. Sanges, 144 U. S. 310,
144 U. S. 320.
But in
United States v. Rider, it was adjudged by this
Court that the act of 1891 had superseded and repealed the earlier
acts authorizing questions of law to be certified from the circuit
court to this Court, and the grounds of that adjudication
sufficiently appear by
Page 175 U. S. 685
the statement of the effect of the act of 1891 in two passages
of that opinion:
"Appellate jurisdiction was given in all criminal cases by writ
of error either from this Court or from the circuit courts of
appeals, and in all civil cases by appeal or error, without regard
to the amount in controversy, except as to appeals or writs of
error to or from the circuit courts of appeals in cases not made
final as specified in § 6. . . . It is true that repeals by
implication are not favored, but we cannot escape the conclusion
that, tested by its scope, its obvious purpose, and its terms, the
Act of March 3, 1891, covers the whole subject matter under
consideration, and furnishes the exclusive rule in respect of
appellate jurisdiction on appeal, writ of error, or
certificate."
163 U. S. 163
U.S. 138,
163 U. S. 140.
That judgment was thus rested upon two successive propositions:
first, that the act of 1891 gives appellate jurisdiction, either to
this Court or to the circuit court of appeals, in all criminal
cases, and in all civil cases "without regard to the amount in
controversy;" second, that the act, by its terms, its scope, and
its obvious purpose, "furnishes the exclusive rule in respect of
appellate jurisdiction on appeal, writ of error, or
certificate."
As was long ago said by Chief Justice Marshall,
"the spirit as well as the letter of a statute must be
respected, and where the whole context of the law demonstrates a
particular intent in the legislature to effect a certain object,
some degree of implication may be called in to aid that
intent."
Durousseau v. United
States, 6 Cranch 307,
10 U. S. 314.
And it is a well settled rule in the construction of statutes,
often affirmed and applied by this Court, that,
"even where two acts are not in express terms repugnant, yet if
the latter act covers the whole subject of the first, and embraces
new provisions, plainly showing that it was intended as a
substitute for the first act, it will operate as a repeal of that
act."
United States v.
Tynen, 11 Wall. 88,
78 U. S. 92;
King v. Cornell, 106 U. S. 395,
106 U. S. 396;
Tracy v. Tuffly, 134 U. S. 206,
134 U. S. 223;
Fisk v. Henarie, 142 U. S. 459,
142 U. S. 468;
District of Columbia v. Hutton, 143 U. S.
18,
143 U. S. 27;
United States v. Healey, 160 U. S. 136,
160 U. S.
147.
We are of opinion that the act of 1891, upon its face, read
Page 175 U. S. 686
in the light of settled rules of statutory construction and of
the decisions of this Court, clearly manifests the intention of
Congress to cover the whole subject of the appellate jurisdiction
from the district and circuit courts of the United States, so far
as regards in what cases, as well as to what courts, appeals may be
taken, and to supersede and repeal, to this extent, all the
provisions of earlier acts of Congress, including those that
imposed pecuniary limits upon such jurisdiction, and, as part of
the new scheme, to confer upon this Court jurisdiction of appeals
from all final sentences and decrees in prize causes, without
regard to the amount in dispute, and without any certificate of the
district judge as to the importance of the particular case.
We are then brought to the consideration of the question
whether, upon the facts appearing in these records, the fishing
smacks were subject to capture by the armed vessels of the United
States during the recent war with Spain.
By an ancient usage among civilized nations, beginning centuries
ago and gradually ripening into a rule of international law, coast
fishing vessels pursuing their vocation of catching and bringing in
fresh fish have been recognized as exempt, with their cargoes and
crews, from capture as prize of war.
This doctrine, however, has been earnestly contested at the bar,
and no complete collection of the instances illustrating it is to
be found, so far as we are aware, in a single published work,
although many are referred to and discussed by the writers on
international law, notable in 2 Ortolan, Regles Internationales et
Diplomatie de la Mer (4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo,
Droit International (5th ed.) §§ 2367-2373; in De Boeck,
Propriete Privee Ennemie sous Pavillon Ennemi, §§
191-196, and in Hall, International Law (4th ed.) § 148. It is
therefore worth the while to trace the history of the rule from the
earliest accessible sources through the increasing recognition of
it, with occasional setbacks, to what we may now justly consider as
its final establishment in our own country and generally throughout
the civilized world.
The earliest acts of any government on the subject mentioned
Page 175 U. S. 687
in the books either emanated from, or were approved by, a King
of England.
In 1403 and 1406, Henry IV issued orders to his admirals and
other officers, entitled "Concerning Safety for Fishermen --
De
Securitate pro Piscatoribus." By an order of October 26, 1403,
reciting that it was made pursuant to a treaty between himself and
the King of France, and for the greater safety of the fishermen of
either country, and so that they could be, and carry on their
industry, the more safely on the sea, and deal with each other in
peace, and that the French King had consented that English
fishermen should be treated likewise, it was ordained that French
fishermen might, during the then pending season for the herring
fishery, safely fish for herrings and all other fish from the
harbor of Gravelines and the Island of Thanet to the mouth of the
Seine and the harbor of Hautoune. And by an order of October 5,
1406, he took into his safe conduct and under his special
protection, guardianship, and defense all and singular the
fishermen of France, Flanders, and Brittany, with their fishing
vessels and boats, everywhere on the sea, through and within his
dominions, jurisdictions, and territories, in regard to their
fishery, while sailing, coming, and going, and at their pleasure,
freely and lawfully fishing, delaying, or proceeding, and returning
homeward with their catch of fish, without any molestation or
hindrance whatever, and also their fish, nets, and other property
and goods soever, and it was therefore ordered that such fishermen
should not be interfered with, provided they should comport
themselves well and properly, and should not, by color of these
presents, do or attempt, or presume to do or attempt, anything that
could prejudice the King, or his Kingdom of England, or his
subjects. 8 Rymer's Foedera 336, 451.
The treaty made October 2, 1521, between the Emperor Charles V
and Francis I of France, through their ambassadors, recited that a
great and fierce war had arisen between them, because of which
there had been, both by land and by sea, frequent depredations and
incursions on either side, to the grave detriment and intolerable
injury of the innocent
Page 175 U. S. 688
subjects of each, and that a suitable time for the herring
fishery was at hand, and, by reason of the sea being beset by the
enemy, the fishermen did not dare to go out, whereby the subject of
their industry, bestowed by heaven to allay the hunger of the poor,
would wholly fail for the year unless it were otherwise provided --
quo fit, ut piscaturae commoditas, ad pauperum levandam famen a
coelesti numine concessa, cessare hoc anno omnino debeat, nisi
aliter provideatur. And it was therefore agreed that the
subjects of each sovereign, fishing in the sea or exercising the
calling of fishermen, could and might, until the end of the next
January, without incurring any attack, depredation, molestation,
trouble, or hindrance soever, safely and freely, everywhere in the
sea, take herrings and every other kind of fish, the existing war
by land and sea notwithstanding; and, further, that, during the
time aforesaid, no subject of either sovereign should commit, or
attempt or presume to commit, any depredation, force, violence,
molestation, or vexation to or upon such fishermen or their
vessels, supplies, equipments, nets, and fish, or other goods
soever truly appertaining to fishing. The treaty was made at
Calais, then an English possession. It recites that the ambassadors
of the two sovereigns met there at the earnest request of Henry
VIII and with his countenance and in the presence of Cardinal
Wolsey, his chancellor and representative. And towards the end of
the treaty, it is agreed that the said King and his said
representative, "by whose means the treaty stands concluded, shall
be conservators of the agreements therein, as if thereto by both
parties elected and chosen." 4 Dumont, Corps Diplomatique, pt. 1,
pp. 352, 353.
The herring fishery was permitted, in time of war, by French and
Dutch edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib.
1, c. 3; 1 Emerigon des Assurances, c. 4, section 9; c. 12, section
19, section 8.
France, from remote times, set the example of alleviating the
evils of war in favor of all coast fishermen. In the compilation
entitled "
Us et Coutumes de la Mer," published by Cleirac
in 1661, and in the third part thereof, containing "Maritime or
Admiralty Jurisdiction
-- la Jurisdiction de la
Page 175 U. S. 689
Marine ou d'Admiraute -- as well in time of peace as in
time of war," article 80 is as follows:
"The admiral may in time of war accord fishing truces --
tresves pescheresses -- to the enemy and to his subjects,
provided that the enemy will likewise accord them to
Frenchmen."
Cleirac 544. Under this article, reference is made to articles
49 and 79, respectively, of the French ordinances concerning the
admiralty in 1543 and 1584, of which it is but a reproduction. 4
Pardessus, Collection de Lois Maritimes 319; 2 Ortolan, 51. And
Cleirac adds, in a note, this quotation from Froissart's
Chronicles:
"Fishermen on the sea, whatever war there were in France and
England, never did harm to one another; so they are friends, and
help one another at need --
Pescheurs sur mer, quelque guerre
qui soit en France et Angleterre, jamais ne se firent mal l'un a
l'autre; aincois sont amis, et s'aydent l'un a l'autre au
besoin."
The same custom would seem to have prevailed in France until
towards the end of the seventeenth century. For example, in 1675,
Louis XIV and the States General of Holland, by mutual agreement,
granted to Dutch and French fishermen the liberty, undisturbed by
their vessels of war, of fishing along the coasts of France,
Holland, and England. D'Hauterive et De Cussy, Traites de Commerce,
pt. 1, vol. 2, p. 278. But by the ordinances of 1681 and 1692, the
practice was discontinued, because, Valin says, of the faithless
conduct of the enemies of France, who, abusing the good faith with
which she had always observed the treaties, habitually carried off
her fishermen, while their own fished in safety. 2 Valin sur
l'Ordonnance de la Marine (1776) 689, 690; 2 Ortolan 52; De Boeck,
§ 192.
The doctrine which exempts coast fishermen, with their vessels
and cargoes, from capture as prize of war, has been familiar to the
United States from the time of the War of Independence.
On June 5, 1779, Louis XVI., our ally in that war, addressed a
letter to his admiral, informing him that the wish he had always
had of alleviating, as far as he could, the hardships of war, had
directed his attention to that class of his subjects
Page 175 U. S. 690
which devoted itself to the trade of fishing, and had no other
means of livelihood; that he had thought that the example which he
should give to his enemies, and which could have no other source
than the sentiments of humanity which inspired him, would determine
them to allow to fishermen the same facilities which he should
consent to grant, and that he had therefore given orders to the
commanders of all his ships not to disturb English fishermen, nor
to arrest their vessels laden with fresh fish, even if not caught
by those vessels; provided they had no offensive arms, and were not
proved to have made any signals creating a suspicion of
intelligence with the enemy, and the admiral was directed to
communicate the King's intentions to all officers under his
control. By a royal order in council of November 6, 1780, the
former orders were confirmed, and the capture and ransom, by a
French cruiser, of
The John and Sarah, an English vessel,
coming from Holland, laden with fresh fish, were pronounced to be
illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.
Among the standing orders made by Sir James Marriott, Judge of
the English High Court of Admiralty, was one of April 11, 1780, by
which it was
"ordered that all causes of prize of fishing boats or vessels
taken from the enemy may be consolidated in one monition, and one
sentence or interlocutory, if under fifty tons burthen, and not
more than six in number."
Marriott's Formulary 4. But by the statements of his successor,
and of both French and English writers, it appears that England, as
well as France, during the American Revolutionary War, abstained
from interfering with the coast fisheries.
The Young Jacob and
Johanna, 1 C. Rob. 20; 2 Ortolan 53; Hall, § 148.
In the treaty of 1785 between the United States and Prussia,
article 23 (which was proposed by the American Commissioners, John
Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have
been drawn up by Franklin), provided that if war should arise
between the contracting parties,
"all women and children, scholars of every faculty, cultivators
of the earth, artisans, manufacturers, and fishermen,
Page 175 U. S. 691
unarmed and inhabiting unfortified towns, villages, or places,
and in general all others whose occupations are for the common
subsistence and benefit of mankind, shall be allowed to continue
their respective employments, and shall not be molested in their
persons, nor shall their houses or goods be burnt or otherwise
destroyed, nor their fields wasted by the armed force of the enemy,
into whose power, by the events of war, they may happen to fall;
but if anything is necessary to be taken from them for the use of
such armed force, the same shall be paid for at a reasonable
price."
8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of
Nations, 306, 308. Here was the clearest exemption from hostile
molestation or seizure of the persons, occupations, houses, and
goods of unarmed fishermen inhabiting unfortified places. The
article was repeated in the later treaties between the United
States and Prussia of 1799 and 1828. 8 Stat. 174, 384. And Dana, in
a note to his edition of Wheaton's International Laws, says:
"In many treaties and decrees, fishermen catching fish as an
article of food are added to the class of persons whose occupation
is not to be disturbed in war."
Wheaton, International Law (8th ed.) § 345, note 168.
Since the United States became a nation, the only serious
interruptions, so far as we are informed, of the general
recognition of the exemption of coast fishing vessels from hostile
capture, arose out of the mutual suspicions and recriminations of
England and France during the wars of the French Revolution.
In the first years of those wars, England having authorized the
capture of French fishermen, a decree of the French National
Convention of October 2, 1793, directed the executive power "to
protest against this conduct, theretofore without example; to
reclaim the fishing boats seized; and, in case of refusal, to
resort to reprisals." But in July, 1796, the Committee of Public
Safety ordered the release of English fishermen seized under the
former decree, "not considering them as prisoners of war."
La
Nostra Segnora de la Piedad (1801) cited below; 2 De Cussy,
Droit Maritime, 164, 165; 1 Masse, Droit Commercial (2d ed.) 266,
267.
Page 175 U. S. 692
On January 24, 1798, the English government by express order
instructed the commanders of its ships to seize French and Dutch
fishermen with their boats. 6 Martens, Recueil des Traites (2d ed.)
505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the
promulgation of that order, Lord Stowell (then Sir William Scott)
in the High Court of Admiralty of England condemned small Dutch
fishing vessels as prize of war. In one case, the capture was in
April, 1798, and the decree was made November 13, 1798.
The
Young Jacob and Johanna, 1 C. Rob. 20. In another case, the
decree was made August 23, 1799.
The Noydt Gedacht, 2 C.
Rob. 137, note.
For the year 1800, the orders of the English and French
governments and the correspondence between them may be found in
books already referred to. 6 Martens 503-512; 6 Schoell, 118-120; 2
Ortolan 53, 54. The doings for that year may be summed up as
follows: on March 27, 1800, the French government, unwilling to
resort to reprisals, reenacted the orders given by Louis XVI in
1780, above mentioned, prohibiting any seizure by the French ships
of English fishermen, unless armed or proved to have made signals
to the enemy. On May 30, 1800, the English government, having
received notice of that action of the French government, revoked
its order of January 24, 1798. But soon afterward, the English
government complained that French fishing boats had been made into
fireboats at Flushing, as well as that the French government had
impressed and had sent to Brest, to serve in its flotilla, French
fishermen and their boats, even those whom the English had released
on condition of their not serving, and on January 21, 1801,
summarily revoked its last order, and again put in force its order
of January 24, 1798. On February 16, 1801, Napoleon Bonaparte, then
First Consul, directed the French commissioner at London to return
at once to France, first declaring to the English government that
its conduct,
"contrary to all the usages of civilized nations, and to the
common law which governs them, even in time of war, gave to the
existing war a character of rage and bitterness which destroyed
even the relations usual in a loyal war, "
Page 175 U. S. 693
and "tended only to exasperate the two nations, and to put off
the term of peace," and that the French government, having always
made it
"a maxim to alleviate as much as possible the evils of war,
could not think, on its part, of rendering wretched fishermen
victims of a prolongation of hostilities, and would abstain from
all reprisals."
On March 16, 1801, the Addington Ministry, having come into
power in England, revoked the orders of its predecessors against
the French fishermen, maintaining, however, that "the freedom of
fishing was nowise founded upon an agreement, but upon a simple
concession," that "this concession would be always subordinate to
the convenience of the moment," and that "it was never extended to
the great fishery, or to commerce in oysters or in fish." And the
freedom of the coast fisheries was again allowed on both sides. 6
Martens 514; 6 Schoell 121; 2 Ortolan, 54; Manning, Law of Nations
(Amos' ed.) 206.
Lord Stowell's judgment in
The Young Jacob and Johanna,
1 C. Rob. 20, above cited, was much relied on by the counsel for
the United States, and deserves careful consideration.
The vessel there condemned is described in the report as "a
small Dutch fishing vessel taken April, 1798, on her return from
the Dogger bank to Holland," and Lord Stowell, in delivering
judgment, said:
"In former wars, it has not been usual to make captures of these
small fishing vessels; but this rule was a rule of comity only, and
not of legal decision; it has prevailed from views of mutual
accommodation between neighboring countries, and from tenderness to
a poor and industrious order of people. In the present war, there
has, I presume, been sufficient reason for changing this mode of
treatment, and as they are brought before me for my judgment, they
must be referred to the general principles of this Court; they fall
under the character and description of the last class of cases --
that is, of ships constantly and exclusively employed in the
enemy's trade."
And he added: "It is a further satisfaction to me in giving this
judgment to observe that the facts also bear strong marks of a
false and fraudulent transaction."
Page 175 U. S. 694
Both the capture and the condemnation were within a year after
the order of the English government of January 24, 1798,
instructing the commanders of its ships to seize French and Dutch
fishing vessels, and before any revocation of that order. Lord
Stowell's judgment shows that his decision was based upon the order
of 1798, as well as upon strong evidence of fraud. Nothing more was
adjudged in the case.
But some expressions in his opinion have been given so much
weight by English writers that it may be well to examine them
particularly. The opinion begins by admitting the known custom in
former wars not to capture such vessels, adding, however, "but this
was a rule of comity only, and not of legal decision." Assuming the
phrase "legal decision" to have been there used, in the sense in
which courts are accustomed to use it, as equivalent to "judicial
decision," it is true that, so far as appears, there had been no
such decision on the point in England. The word "comity" was
apparently used by Lord Stowell as synonymous with courtesy or
goodwill. But the period of a hundred years which has since elapsed
is amply sufficient to have enabled what originally may have rested
in custom or comity, courtesy or concession, to grow, by the
general assent of civilized nations, into a settled rule of
international law. As well said by Sir James Mackintosh:
"In the present century, a slow and silent, but very
substantial, mitigation has taken place in the practice of war, and
in proportion as that mitigated practice has received the sanction
of time, it is raised from the rank of mere usage and becomes part
of the law of nations."
Discourse on the Law of Nations 38; 1 Miscellaneous Works,
360.
The French prize tribunals, both before and after Lord Stowell's
decision, took a wholly different view of the general question. In
1780, as already mentioned, an order in council of Louis XVI had
declared illegal the capture by a French cruiser of
The John
and Sarah, an English vessel coming from Holland, laden with
fresh fish. And on May 17, 1801, where a Portuguese fishing vessel,
with her cargo of fish, having no more crew than was needed for her
management and for serving the nets, on a trip of several days, had
been captured
Page 175 U. S. 695
in April, 1801, by a French cruiser, three leagues off the coast
of Portugal, the Council of Prizes held that the capture was
contrary to "the principles of humanity and the maxims of
international law," and decreed that the vessel, with the fish on
board, or the net proceeds of any that had been sold, should be
restored to her master.
La Nostra Segnora de la Piedad, 25
Merlin, Jurisprudence, Prise Maritime, § 3, arts. 1, 3;
S.C. 1 Pistoye et Duverdy, Prises Maritimes 331; 2 De
Cussy, Droit Maritime 166.
The English government, soon afterwards, more than once
unqualifiedly prohibited the molestation of fishing vessels
employed in catching and bringing to market fresh fish. On May 23,
1806, it was
"ordered in council that all fishing vessels under Prussian and
other colors, and engaged for the purpose of catching fish and
conveying them fresh to market, with their crews, cargoes, and
stores, shall not be molested on their fishing voyages and bringing
the same to market, and that no fishing vessels of this description
shall hereafter be molested. And the Right Honorable the Lords
Commissioners of His Majesty's Treasury, the Lords Commissioners of
the Admiralty, and the Judge of the High Court of Admiralty, are to
give the necessary directions herein as to them may respectively
appertain."
5 C. Rob. 408. Again, in the order in council of May 2, 1810,
which directed that
"all vessels which shall have cleared out from any port so far
under the control of France or her allies as that British vessels
may not freely trade thereat, and which are employed in the whale
fishery, or other fishery of any description, save as hereinafter
excepted, and are returning, or destined to return either to the
port from whence they cleared, or to any other port or place at
which the British flag may not freely trade, shall be captured and
condemned together with their stores and cargoes, as prize to the
captors,"
there were excepted "vessels employed in catching and conveying
fish fresh to market, such vessels not being fitted or provided for
the curing of fish." Edw.Adm. appx. L.
Wheaton, in his Digest of the Law of Maritime Captures and
Prizes, published in 1815, wrote:
"It has been usual
Page 175 U. S. 696
in maritime wars to exempt from capture fishing boats and their
cargoes, both from views of mutual accommodation between
neighboring countries, and from tenderness to a poor and
industrious order of people. This custom, so honorable to the
humanity of civilized nations, has fallen into disuse, and it is
remarkable that both France and England mutually reproach each
other with that breach of good faith which has finally abolished
it."
Wheaton, Captures, c. 2, § 18.
This statement clearly exhibits Wheaton's opinion that the
custom had been a general one, as well as that it ought to remain
so. His assumption that it had been abolished by the differences
between France and England at the close of the last century was
hardly justified by the state of things when he wrote, and has not
since been borne out.
During the wars of the French Empire, as both French and English
writers agree, the coast fisheries were left in peace. 2 Ortolan
54; De Boeck § 193; Hall § 148. De Boeck quaintly and
truly adds, "and the incidents of 1800 and of 1801 had no morrow --
n'eurent pas de lendemain."
In the war with Mexico, in 1846, the United States recognized
the exemption of coast fishing boats from capture. In proof of
this, counsel have referred to records of the Navy Department,
which this Court is clearly authorized to consult upon such a
question.
Jones v. United States, 137 U.
S. 202;
Underhill v. Hernandez, 168 U.
S. 250,
168 U. S.
253.
By those records, it appears that Commodore Conner, commanding
the Home Squadron blockading the east coast of Mexico, on May 14,
1846, wrote a letter from the ship
Cumberland, off Brazos
Santiago, near the southern point of Texas, to Mr. Bancroft, the
Secretary of the Navy, enclosing a copy of the commodore's
"instructions to the commanders of the vessels of the Home
Squadron, showing the principles to be observed in the blockade of
the Mexican ports," one of which was that "Mexican boats engaged in
fishing on any part of the coast will be allowed to pursue their
labors unmolested," and that, on June 10, 1846, those instructions
were approved by the Navy Department, of which Mr. Bancroft was
still the head, and continued to be until he was appointed Minister
to
Page 175 U. S. 697
England in September following. Although Commodore Conner's
instructions and the Department's approval thereof do not appear in
any contemporary publication of the government, they evidently
became generally known at the time, or soon after, for it is stated
in several treatises on international law (beginning with Ortolan's
second edition, published in 1853) that the United States in the
Mexican war permitted the coast fishermen of the enemy to continue
the free exercise of their industry. 2 Ortolan (2d ed.) 49, note;
(4th ed.) 55; 4 Calvo (5th ed.) § 2372; De Boeck § 194;
Hall (4th ed.) § 148.
As qualifying the effect of those statements, the counsel for
the United States relied on a proclamation of Commodore Stockton,
commanding the Pacific Squadron, dated August 20, 1846, directing
officers under his command to proceed immediately to blockade the
ports of Mazatlan and San Blas, on the west coast of Mexico, and
saying to them,
"All neutral vessels that you may find there you will allow
twenty days to depart, and you will make the blockade absolute
against all vessels, except armed vessels of neutral nations. You
will capture all vessels under the Mexican flag that you may be
able to take."
Navy Reports of 1846, pp. 673, 674. But there is nothing to show
that Commodore Stockton intended, or that the government approved,
the capture of coast fishing vessels.
On the contrary, General Halleck, in the preface to his work on
International Law, or Rules Regulating the Intercourse of states in
Peace and War, published in 1861, says that he began that work
during the war between the United States and Mexico "while serving
on the staff of the commander of the Pacific Squadron," and "often
required to give opinions on questions of international law growing
out of the operations of the war." Had the practice of the
blockading squadron on the west coast of Mexico during that war, in
regard to fishing vessels, differed from that approved by the Navy
Department on the east coast, General Halleck could hardly have
failed to mention it when stating the prevailing doctrine upon the
subject as follows:
Page 175 U. S. 698
"Fishing boats have also, as a general rule, been exempted from
the effects of hostilities. As early as 1521, while war was raging
between Charles V and Francis, ambassadors from these two
sovereigns met at Calais, then English, and agreed that, whereas
the herring fishery was about to commence, the subjects of both
belligerents engaged in this pursuit should be safe and unmolested
by the other party, and should have leave to fish as in time of
peace. In the war of 1800, the British and French governments
issued formal instructions exempting the fishing boats of each
other's subjects from seizure. This order was subsequently
rescinded by the British government on the alleged ground that some
French fishing boats were equipped as gunboats, and that some
French fishermen who had been prisoners in England had violated
their parole not to serve, and had gone to join the French fleet at
Brest. Such excuses were evidently mere pretexts, and after some
angry discussions had taken place on the subject, the British
restriction was withdrawn and the freedom of fishing was again
allowed on both sides. French writers consider this exemption as an
established principle of the modern law of war, and it has been so
recognized in the French courts, which have restored such vessels
when captured by French cruisers."
Halleck (1st ed.) c. 20, § 23.
That edition was the only one sent out under the author's own
auspices except an abridgment, entitled "Elements of International
Law and the Law of War," which he published in 1866, as he said in
the preface, to supply a suitable textbook for instruction upon the
subject, "not only in our colleges, but also in our two great
national schools -- the Military and Naval Academies." In that
abridgment, the statement as to fishing boats was condensed as
follows:
"Fishing boats have also, as a general rule, been exempted from
the effects of hostilities. French writers consider this exemption
as an established principle of the modern law of war, and it has
been so recognized in the French courts, which have restored such
vessels when captured by French cruisers."
Halleck's Elements, c. 20, § 21.
In the treaty of peace between the United States and Mexico,
Page 175 U. S. 699
in 1848, were inserted the very words of the earlier treaties
with Prussia, already quoted, forbidding the hostile molestation or
seizure in time of war of the persons, occupations, houses, or
goods of fishermen. 9 Stat. 939, 940.
Wharton's Digest of the International Law of the United States,
published by authority of Congress in 1886 and 1887, embodies
General Halleck's fuller statement, above quoted, and contains
nothing else upon the subject. 3 Whart. Int.Law Dig. § 345, p.
315; 2 Halleck (Eng. eds. 1873 and 1878) p. 151.
France in the Crimean war in 1854, and in her wars with Italy in
1859 and with Germany in 1870, by general orders, forbade her
cruisers to trouble the coast fisheries or to seize any vessel or
boat engaged therein unless naval or military operations should
make it necessary. Calvo, § 2372; Hall, § 148; 2 Ortolan
(4th ed.) 449; 10 Revue de Droit Internationale (1878) 399.
Calvo says that, in the Crimean War,
"notwithstanding her alliance with France and Italy, England did
not follow the same line of conduct, and her cruisers in the Sea of
Azof destroyed the fisheries, nets, fishing implements, provisions,
boats, and even the cabins of the inhabitants of the coast."
Calvo § 2372. And a Russian writer on prize law remarks
that those depredations,
"having brought ruin on poor fishermen and inoffensive traders,
could not but leave a painful impression on the minds of the
population, without impairing in the least the resources of the
Russian government."
Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports
of the English naval officers put a different face on the matter by
stating that the destruction in question was part of a military
measure, conducted with the cooperation of the French ships, and
pursuant to instructions of the English admiral
"to clear the seaboard of all fish stores, all fisheries and
mills, on a scale beyond the wants of the neighboring population,
and indeed of all things destined to contribute to the maintenance
of the enemy's army in the Crimea,"
and that the property destroyed consisted of large fishing
establishments and storehouses of the Russian government, numbers
of heavy launches, and enormous quantities of nets and gear, salted
fish, corn,
Page 175 U. S. 700
and other provisions intended for the supply of the Russian
army. United Service Journal of 1855, pt. 3, pp. 108-112.
Since the English orders in council of 1806 and 1810, before
quoted, in favor of fishing vessels employed in catching and
bringing to market fresh fish, no instance has been found in which
the exemption from capture of private coast fishing vessels
honestly pursuing their peaceful industry has been denied by
England or by any other nation. And the Empire of Japan (the last
state admitted into the rank of civilized nations), by an ordinance
promulgated at the beginning of its war with China in August, 1894,
established prize courts and ordained that "the following enemy's
vessels are exempt from detention," including in the exemption
"boats engaged in coast fisheries," as well as "ships engaged
exclusively on a voyage of scientific discovery, philanthrophy, or
religious mission." Takahashi, International Law 11, 178.
International law is part of our law, and must be ascertained
and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are
duly presented for their determination. For this purpose, where
there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages
of civilized nations, and, as evidence of these, to the works of
jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the
subjects of which they treat. Such works are resorted to by
judicial tribunals not for the speculations of their authors
concerning what the law ought to be, but for trustworthy evidence
of what the law really is.
Hilton v. Guyot, 159 U.
S. 113,
159 U. S.
163-164,
159 U. S.
214-215.
Wheaton places among the principal sources international law
"text writers of authority, showing what is the approved usage
of nations, or the general opinion respecting their mutual conduct,
with the definitions and modifications introduced by general
consent."
As to these, he forcibly observes:
"Without wishing to exaggerate the importance of these writers
or to substitute, in any case, their authority for the principles
of reason, it may be affirmed that they are generally
Page 175 U. S. 701
impartial in their judgment. They are witnesses of the
sentiments and usages of civilized nations, and the weight of their
testimony increases every time that their authority is invoked by
statesmen, and every year that passes without the rules laid down
in their works being impugned by the avowal of contrary
principles."
Wheaton, International Law (8th ed.), § 15.
Chancellor Kent says:
"In the absence of higher and more authoritative sanctions, the
ordinances of foreign states, the opinions of eminent statesmen,
and the writings of distinguished jurists are regarded as of great
consideration on questions not settled by conventional law. In
cases where the principal jurists agree, the presumption will be
very great in favor of the solidity of their maxims, and no
civilized nation that does not arrogantly set all ordinary law and
justice at defiance will venture to disregard the uniform sense of
the established writers on international law."
1 Kent, Com. 18.
It will be convenient, in the first place, to refer to some
leading French treatises on international law, which deal with the
question now before us, not as one of the law of France only, but
as one determined by the general consent of civilized nations.
"Enemy ships," say Pistoye and Duverdy, in their Treatise on
Maritime Prizes, published in 1855,
"are good prize. Not all, however, for it results from the
unanimous accord of the maritime powers that an exception should be
made in favor of coast fishermen. Such fishermen are respected by
the enemy so long as they devote themselves exclusively to
fishing."
1 Pistoye et Duverdy, Tit. 6, c. 1, p. 314.
De Cussy, in his work on the Phases and Leading cases of the
Maritime Law of Nations --
Phases et Causes Celebres du Droit
Maritime des Nations -- published in 1856, affirms in the
clearest language the exemption from capture of fishing boats,
saying, in lib. 1, Tit. 3, § 36, that
"in time of war, the freedom of fishing is respected by
belligerents; fishing boats are considered as neutral; in law, as
in principle, they are not subject either to capture or to
confiscation,"
and that in lib. 2, c. 20, he will state "several facts and
several decisions
Page 175 U. S. 702
which prove that the perfect freedom and neutrality of fishing
boats are not illusory." 1 De Cussy, p. 291. And in the chapter so
referred to, entitled
De la Liberte et de la Neutralite
Parfaite de la Peche, besides references to the edicts and
decisions in France during the French Revolution, is this general
statement:
"If one consulted only positive international law --
1e
droit des gens positif -- [by which is evidently meant
international law expressed in treaties, decrees, or other public
acts, as distinguished from what may be implied from custom or
usage], fishing boats would be subject, like all other trading
vessels, to the law of prize; a sort of tacit agreement among all
European nations frees them from it, and several official
declarations have confirmed this privilege in favor of 'a class of
men whose hard and ill rewarded labor, commonly performed by feeble
and aged hands, is so foreign to the operations of war.'"
2 De Cussy 164, 165.
Ortolan, in the fourth edition of his
Regles Internationales
et Diplomatie de la Mer, published in 1864, after stating the
general rule that the vessels and cargoes of subjects of the enemy
are lawful prize, says:
"Nevertheless, custom admits an exception in favor of boats
engaged in the coast fishery; these boats, as well as their crews,
are free from capture and exempt from all hostilities. The
coast-fishing industry is, in truth, wholly pacific, and of much
less importance in regard to the national wealth that it may
produce than maritime commerce or the great fisheries. Peaceful and
wholly inoffensive, those who carry it on, among whom women are
often seen, may be called the harvesters of the territorial seas,
since they confine themselves to gathering in the products thereof;
they are for the most part poor families who seek in this calling
hardly more than the means of gaining their livelihood."
2 Ortolan 51. Again, after observing that there are very few
solemn public treaties which make mention of the immunity of
fishing boats in time of war, he says:
"From another point of view, the custom which sanctions this
immunity is not so general that it can be considered as making an
absolute international rule; but it has been so often put in
practice, and, besides, it accords so well with the rule in use in
wars on
Page 175 U. S. 703
land, in regard to peasants and husbandmen, to whom coast
fishermen may be likened, that it will doubtless continue to be
followed in maritime wars to come."
2 Ortolan 55.
No international jurist of the present day has a wider or more
deserved reputation than Calvo, who, though writing in French, is a
citizen of the Argentine Republic employed in its diplomatic
service abroad. In the fifth edition of his great work on
international law, published in 1896, he observes, in § 2366,
that the international authority of decisions in particular cases
by the prize courts of France, of England, and of the United States
is lessened by the fact that the principles on which they are based
are largely derived from the internal legislation of each country,
and yet the peculiar character of maritime wars, with other
considerations, gives to prize jurisprudence a force and importance
reaching beyond the limits of the country in which it has
prevailed. He therefore proposes here to group together a number of
particular cases proper to serve as precedents for the solution of
grave questions of maritime law in regard to the capture of private
property as prize of war. Immediately, in § 2367, he goes on
to say:
"Notwithstanding the hardships to which maritime wars subject
private property, notwithstanding the extent of the recognized
rights of belligerents, there are generally exempted, from seizure
and capture, fishing vessels."
In the next section, he adds: "This exception is perfectly
justiciable --
Cette exception est parfaitement
justiciable" -- that is to say, belonging to judicial
jurisdiction or cognizance. Littre, Dist.
voc.
Justiciable;
Hans v. Louisiana, 134 U. S.
1,
134 U. S. 15.
Calvo then quotes Ortolan's description, above cited, of the nature
of the coast-fishing industry, and proceeds to refer in detail to
some of the French precedents, to the acts of the French and
English governments in the times of Louis XVI and of the French
Revolution, to the position of the United States in the war with
Mexico, and of France in later wars, and to the action of British
cruisers in the Crimean war. And he concludes his discussion of the
subject, in § 2373, by affirming the exemption of the coast
fishery and pointing out the distinction in this regard between the
coast fishery and
Page 175 U. S. 704
what he calls the great fishery, for cod, whales, or seals, as
follows:
"The privilege of exemption from capture, which is generally
acquired by fishing vessels plying their industry near the coasts,
is not extended in any country to ships employed on the high sea in
what is called the great fishery, such as that for the cod, for the
whale or the sperm whale, or for the seal or sea calf. These ships
are, in effect, considered as devoted to operations which are at
once commercial and industrial --
Ces navires sont en effect
consideres comme adonnes a des operations a la fois commerciales et
industrielles."
The distinction is generally recognized. 2 Ortolan 54; De Boeck
§ 196; Hall, § 148.
See also The Susa, 2 C. Rob.
251;
The Johan, Edw.Adm. 275, and appx. L.
The modern German books on international law, cited by the
counsel for the appellants, treat the custom by which the vessels
and implements of coast fishermen are exempt from seizure and
capture as well established by the practice of nations. Heffter
§ 137; 2 Kalterborn § 237, p. 480; Bluntschli § 667;
Perels § 37, p. 217.
De Boeck, in his work on Enemy Private Property under Enemy's
Flag --
De la Propriete Privee Ennemie sous Pavillon
Ennemi -- published in 1882, and the only continental treatise
cited by the counsel for the United States, says in § 191:
"A usage very ancient, if not universal, withdraws from the
right of capture enemy vessels engaged in the coast fishery. The
reason of this exception is evident; it would have been too hard to
snatch from poor fishermen the means of earning their bread. . . .
The exemption includes the boats, the fishing implements, and the
cargo of fish."
Again, in § 195:
"It is to be observed that very few treatises sanction in due
form this immunity of the coast fishery. . . . There is, then, only
a custom. But what is its character? Is it so fixed and general
that it can be raised to the rank of a positive and formal rule of
international law?"
After discussing the statements of other writers, he approves
the opinion of Ortolan (as expressed in the last sentence above
quoted from his work) and says that, at bottom, it differs by a
shade only from that formulated by Calvo and by some of the German
jurists, and that
"it is more exact,
Page 175 U. S. 705
without ignoring the imperative character of the humane rule in
question --
elle est plus exacte, sans meconnaitre le caractere
imperatif de la regle d'humanite dont il s'agit."
And in § 196 he defines the limits of the rule as
follows:
"But the immunity of the coast fishery must be limited by the
reasons which justify it. The reasons of humanity and of
harmlessness --
les raisons d'humanite et d'innocuite --
which militate in its favor do not exist in the great fishery, such
as the cod fishery; ships engaged in that fishery devote themselves
to truly commercial operations, which employ a large number of
seamen. And these same reasons cease to be applicable to fishing
vessels employed for a warlike purpose, to those which conceal
arms, or which exchange signals of intelligence with ships of war;
but only those taken in the fact can be rigorously treated; to
allow seizure by way of preventive would open the door to every
abuse, and would be equivalent to a suppression of the
immunity."
Two recent English text writers cited at the bar (influenced by
what Lord Stowell said a century since) hesitate to recognize that
the exemption of coast fishing vessels from capture has now become
a settled rule of international law. Yet they both admit that there
is little real difference in the views, or in the practice, of
England and of other maritime nations, and that no civilized nation
at the present day would molest coast fishing vessels so long as
they were peaceably pursuing their calling and there was no danger
that they or their crews might be of military use to the enemy.
Hall, in § 148 of the fourth edition of his Treatise on
International Law, after briefly sketching the history of the
positions occupied by France and England at different periods, and
by the United States in the Mexican war, goes on to say:
"In the foregoing facts there is nothing to show that much real
difference has existed in the practice of the maritime countries.
England does not seem to have been unwilling to spare fishing
vessels so long as they are harmless, and it does not appear that
any state has accorded them immunity under circumstances of
inconvenience to itself. It is likely that all nations would now
refrain from molesting them as a general rule, and would
capture
Page 175 U. S. 706
them so soon as any danger arose that they or their crews might
be of military use to the enemy, and it is also likely that it is
impossible to grant them a more distinct exemption."
So, T. J.Lawrence, in § 206 of his Principles of
International Law, says:
"The difference between the English and the French view is more
apparent than real, for no civilized belligerent would now capture
the boats of fishermen plying their avocation peaceably in the
territorial waters of their own state, and no jurist would
seriously argue that their immunity must be respected if they were
used for warlike purposes, as were the smacks belonging to the
northern ports of France when Great Britain gave the order to
capture them in 1800."
But there are writers of various maritime countries not yet
cited too important to be passed by without notice.
Jan Helenus Ferguson, Netherlands Minister to China, and
previously in the naval and in the colonial service of his country,
in his Manual of International Law for the Use of Navies, Colonies,
and Consulates, published in 1882, writes:
"An exception to the usage of capturing enemy's private vessels
at sea is the coast fishery. . . . This principle of immunity from
capture of fishing boats is generally adopted by all maritime
powers, and in actual warfare they are universally spared so long
as they remain harmless."
2 Ferguson § 212.
Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual
for Naval Officers, published at Vienna in 1872 under the auspices
of Admiral Tegetthoff, says:
"Regarding the capture of enemy property, an exception must be
mentioned, which is a universal custom. Fishing vessels which
belong to the adjacent coast, and whose business yields only a
necessary livelihood, are, from considerations of humanity,
universally excluded from capture."
1 Attlmayr 61.
Ignacio de Megrin, First Official of the Spanish Board of
Admiralty, in his Elementary Treatise on Maritime International
Law, adopted by royal order as a textbook in the naval schools of
Spain and published at Madrid in 1873, concludes his chapter "Of
the lawfulness of prizes" with these words:
"It remains to be added that the custom of all civilized peoples
excludes from capture and from all kind of hostility the
Page 175 U. S. 707
fishing vessels of the enemy's coasts, considering this industry
as absolutely inoffensive, and deserving, from its hardships and
usefulness, of this favorable exception. It has been thus expressed
in very many international conventions, so that it can be deemed an
incontestable principle of law at least among enlightened
nations."
Negrin, Tit. 3, c. 1, § 310.
Carlos Testa, captain in the Portuguese Navy and professor in
the naval school at Lisbon, in his work on Public International
Law, published in French at Paris in 1886, when discussing the
general right of capturing enemy ships, says:
"Nevertheless, in this, customary law establishes an exception
of immunity in favor of coast fishing vessels. Fishing is so
peaceful an industry, and is generally carried on by so poor and so
hardworking a class of men, that it is likened, in the territorial
waters of the enemy's country, to the class of husbandmen who
gather the fruits of the earth for their livelihood. The examples
and practice generally followed establish this humane and
beneficent exception as an international rule, and this rule may be
considered as adopted by customary law and by all civilized
nations."
Testa, pt. 3, c. 2, in 18 Bibliotheque International et
Diplomatique, pp. 152, 153.
No less clearly and decisively speaks the distinguished Italian
jurist, Pasquale Fiore, in the enlarged edition of his exhaustive
work on Public International Law, published at Paris in 1885-1886,
saying:
"The vessels of fishermen have been generally declared exempt
from confiscation because of the eminently peaceful object of their
humble industry and of the principles of equity and humanity. The
exemption includes the vessel, the implements of fishing, and the
cargo resulting from the fishery. This usage, eminently humane,
goes back to very ancient times, and although the immunity of the
fishery along the coasts may not have been sanctioned by treaties,
yet it is considered today as so definitely established that the
inviolability of vessels devoted to that fishery is proclaimed by
the publicists as a positive rule of international law, and is
generally respected by the nations. Consequently we shall lay down
the following rule: (a) vessels belonging to citizens of the enemy
state, and devoted to fishing
Page 175 U. S. 708
along the coasts, cannot be subject to capture; (b) such
vessels, however, will lose all right of exemption when employed
for a warlike purpose; (c) there may nevertheless be subjected to
capture vessels devoted to the great fishery in the ocean, such as
those employed in the whale fishery, or in that for seals or sea
calves."
3 Fiore § 1421.
This review of the precedents and authorities on the subject
appears to us abundantly to demonstrate that, at the present day,
by the general consent of the civilized nations of the world, and
independently of any express treaty or other public act, it is an
established rule of international law, founded on considerations of
humanity to a poor and industrious order of men, and of the mutual
convenience of belligerent states, that coast fishing vessels, with
their implements and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing
in fresh fish, are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or
their vessels if employed for a warlike purpose, or in such a way
as to give aid or information to the enemy, nor when military or
naval operations create a necessity to which all private interests
must give way.
Nor has the exemption been extended to ships or vessels employed
on the high sea in taking whales or seals or cod or other fish
which are not brought fresh to market, but are salted or otherwise
cured and made a regular article of commerce.
This rule of international law is one which prize courts
administering the law of nations are bound to take judicial notice
of, and to give effect to, in the absence of any treaty or other
public act of their own government in relation to the matter.
Calvo, in a passage already quoted, distinctly affirms that the
exemption of coast fishing vessels from capture is perfectly
justiciable, or, in other words, of judicial jurisdiction or
cognizance. Calvo § 2368. Nor are judicial precedents wanting
in support of the view that this exemption, or a somewhat analogous
one, should be recognized and declared by a prize court.
Page 175 U. S. 709
By the practice of all civilized nations, vessels employed only
for the purposes of discovery or science are considered as exempt
from the contingencies of war, and therefore not subject to
capture. It has been usual for the government sending out such an
expedition to give notice to other powers, but it is not essential.
1 Kent, Com. 91, note; Halleck, c. 20, § 22; Calvo §
2376; Hall § 138.
In 1813, while the United States were at war with England, an
American vessel on her voyage from Italy to the United States was
captured by an English ship, and brought into Halifax, in Nova
Scotia, and, with her cargo, condemned as lawful prize by the court
of vice admiralty there. But a petition for the restitution of a
case of paintings and engravings which had been presented to and
were owned by the Academy of Arts in Philadelphia was granted by
Dr. Croke, the judge of that court, who said:
"The same law of nations which prescribes that all property
belonging to the enemy shall be liable to confiscation has likewise
its modifications and relaxations of that rule. The arts and
sciences are admitted amongst all civilized nations as forming an
exception to the severe rights of warfare, and as entitled to favor
and protection. They are considered not as the peculium of this or
of that nation, but as the property of mankind at large, and as
belonging to the common interests of the whole species."
And he added that there had been "innumerable cases of the
mutual exercise of this courtesy between nations in former wars."
The Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445,
482.
In 1861, during the war of the Rebellion, a similar decision was
made in the District Court of the United States for the Eastern
District of Pennsylvania in regard to two cases of books belonging
and consigned to a university in North Carolina. Judge Cadwalader,
in ordering these books to be liberated from the custody of the
marshal and restored to the agent of the university, said:
"Though this claimant, as the resident of a hostile district,
would not be entitled to restitution of the subject of a commercial
adventure in books, the purpose of the shipment in question gives
to it a different
Page 175 U. S. 710
character. The United States, in prosecuting hostilities for the
restoration of their constitutional authority, are compelled
incidentally to confiscate property captured at sea, of which the
proceeds would otherwise increase the wealth of that district. But
the United States are not at war with literature in that part of
their territory."
He then referred to the decision in Nova Scotia, and to the
French decisions upon cases of fishing vessels, as precedents for
the decree which he was about to pronounce, and he added that,
without any such precedents, he should have had no difficulty in
liberating these books.
The Amelia, 4 Philadelphia
417.
In
Brown v. United
States, 8 Cranch 110, there are expressions of
Chief Justice Marshall which, taken by themselves, might seem
inconsistent with the position above maintained, of the duty of a
prize court to take judicial notice of a rule of international law,
established by the general usage of civilized nations, as to the
kind of property subject to capture. But the actual decision in
that case, and the leading reasons on which it was based, appear to
us rather to confirm our position. The principal question there was
whether personal property of a British subject, found on land in
the United States at the beginning of the last war with Great
Britain, could lawfully be condemned as enemy's property on a libel
filed by the attorney of the United States, without a positive act
of Congress. The conclusion of the Court was
"that the power of confiscating enemy property is in the
legislature, and that the legislature has not yet declared its will
to confiscate property which was within our territory at the
declaration of war."
8 Cranch
12 U. S. 129.
In showing that the declaration of war did not, of itself, vest the
Executive with authority to order such property to be confiscated,
the Chief Justice relied on the modern usages of nations,
saying:
"The universal practice of forbearing to seize and confiscate
debts and credits, the principle universally received that the
right to them revives on the restoration of peace, would seem to
prove that war is not an absolute confiscation of this property,
but simply confers the right of confiscation,"
and again:
"The modern rule, then, would seem to be that tangible
property
Page 175 U. S. 711
belonging to an enemy, and found in the country at the
commencement of war, ought not to be immediately confiscated, and
in almost every commercial treaty, an article is inserted
stipulating for the right to withdraw such property."
8 Cranch
12 U. S.
123-125. The decision that enemy property on land, which
by the modern usage of nations is not subject to capture as prize
of war, cannot be condemned by a prize court, even by direction of
the Executive, without express authority from Congress appears to
us to repel any inference that coast fishing vessels, which are
exempt by the general consent of civilized nations from capture and
which no act of Congress or order of the President has expressly
authorized to be taken and confiscated, must be condemned by a
prize court for want of a distinct exemption in a treaty or other
public act of the government.
To this subject in more than one aspect are singularly
applicable the words uttered by Mr. Justice Strong, speaking for
this Court:
"Undoubtedly no single nation can change the law of the sea. The
law is of universal obligation, and no statute of one or two
nations can create obligations for the world. Like all the laws of
nations, it rests upon the common consent of civilized communities.
It is of force not because it was prescribed by any superior power,
but because it has been generally accepted as a rule of conduct.
Whatever may have been its origin, whether in the usages of
navigation, or in the ordinances of maritime states, or in both, it
has become the law of the sea only by the concurrent sanction of
those nations who may be said to constitute the commercial world.
Many of the usages which prevail, and which have the force of law,
doubtless originated in the positive prescriptions of some single
state, which were at first of limited effect, but which, when
generally accepted, became of universal obligation."
"This is not giving to the statutes of any nation
extraterritorial effect. It is not treating them as general
maritime laws, but it is recognition of the historical fact that,
by common consent of mankind these rules have been acquiesced in as
of general obligation. Of that fact we think we may take judicial
notice. Foreign municipal laws
Page 175 U. S. 712
must indeed be proved as facts, but it is not so with the law of
nations."
The Scotia, 14
Wall. 170,
81 U. S.
187-188.
The position taken by the United States during the recent war
with Spain was quite in accord with the rule of international law,
now generally recognized by civilized nations, in regard to coast
fishing vessels.
On April 21, 1898, the Secretary of the Navy gave instructions
to Admiral Sampson, commanding the North Atlantic Squadron, to
"immediately institute a blockade of the north coast of Cuba,
extending from Cardenas on the east to Bahia Honda on the west."
Bureau of Navigation Report of 1898, appx. 175. The blockade was
immediately instituted accordingly. On April 22, the President
issued a proclamation declaring that the United States had
instituted and would maintain that blockade "in pursuance of the
laws of the United States, and the law of nations applicable to
such cases." 30 Stat. 1769. And by the act of Congress of April 25,
1898, c. 189, it was declared that the war between the United
States and Spain existed on that day, and had existed since and
including April 21, 30 Stat. 364.
On April 26, 1898, the President issued another proclamation
which, after reciting the existence of the war as declared by
Congress, contained this further recital:
"It being desirable that such war should be conducted upon
principles in harmony with the present views of nations and
sanctioned by their recent practice."
This recital was followed by specific declarations of certain
rules for the conduct of the war by sea, making no mention of
fishing vessels. 30 Stat. 1770. But the proclamation clearly
manifests the general policy of the government to conduct the war
in accordance with the principles of international law sanctioned
by the recent practice of nations.
On April 28, 1898 (after the capture of the two fishing vessels
now in question), Admiral Sampson telegraphed to the Secretary of
the Navy as follows:
"I find that a large number of fishing schooners are attempting
to get into Havana from their fishing grounds near the Florida
reefs and coasts. They are generally manned by excellent seamen,
belonging
Page 175 U. S. 713
to the maritime inscription of Spain, who have already served in
the Spanish navy, and who are liable to further service. As these
trained men are naval reserves, most valuable to the Spaniards as
artillerymen, either afloat or ashore, I recommend that they should
be detained prisoners of war, and that I should be authorized to
deliver them to the commanding officer of the army at Key
West."
To that communication the Secretary of the Navy, on April 30,
1898, guardedly answered:
"Spanish fishing vessels attempting to violate blockade are
subject, with crew, to capture, and any such vessel or crew
considered likely to aid enemy may be detained."
Bureau of Navigation Report of 1898, appx. 178. The admiral's
dispatch assumed that he was not authorized, without express order,
to arrest coast fishermen peaceably pursuing their calling, and the
necessary implication and evident intent of the response of the
Navy Department were that Spanish coast fishing vessels and their
crews should not be interfered with so long as they neither
attempted to violate the blockade nor were considered likely to aid
the enemy.
The Paquete Habana, as the record shows, was a fishing
sloop of 25 tons burden, sailing under the Spanish flag, running in
and out of Havana, and regularly engaged in fishing on the coast of
Cuba. Her crew consisted of but three men, including the master,
and, according to a common usage in coast fisheries, had no
interest in the vessel, but were entitled to two-thirds of her
catch, the other third belonging to her Spanish owner, who, as well
as the crew, resided in Havana. On her last voyage, she sailed from
Havana along the coast of Cuba, about two hundred miles, and fished
for twenty-five days off the cape at the west end of the island,
within the territorial waters of Spain, and was going back to
Havana with her cargo of live fish when she was captured by one of
the blockading squadron on April 25, 1898. She had no arms or
ammunition on board; she had no knowledge of the blockade, or even
of the war, until she was stopped by a blockading vessel; she made
no attempt to run the blockade, and no resistance at the time of
the capture; nor was there any evidence
Page 175 U. S. 714
whatever of likelihood that she or her crew would aid the
enemy.
In the case of the
Lola, the only differences in the
facts were that she was a schooner of 35 tons burden, and had a
crew of six men, including the master; that, after leaving Havana
and proceeding some two hundred miles along the coast of Cuba, she
went on, about one hundred miles farther, to the coast of Yucatan,
and there fished for eight days, and that, on her return, when near
Bahia Honda on the coast of Cuba, she was captured, with her cargo
of live fish, on April 27, 1898. These differences afford no ground
for distinguishing the two cases.
Each vessel was of a moderate size, such as is not unusual in
coast fishing smacks, and was regularly engaged in fishing on the
coast of Cuba. The crew of each were few in number, had no interest
in the vessel, and received, in return for their toil and
enterprise, two-thirds of her catch, the other third going to her
owner by way of compensation for her use. Each vessel went out from
Havana to her fishing ground and was captured when returning along
the coast of Cuba. The cargo of each consisted of fresh fish,
caught by her crew from the sea and kept alive on board. Although
one of the vessels extended her fishing trip across the Yucatan
channel and fished on the coast of Yucatan, we cannot doubt that
each was engaged in the coast fishery, and not in a commercial
adventure, within the rule of international law.
The two vessels and their cargoes were condemned by the district
court as prize of war; the vessels were sold under its decrees, and
it does not appear what became of the fresh fish of which their
cargoes consisted.
Upon the facts proved in either case, it is the duty of this
Court, sitting as the highest prize court of the United States and
administering the law of nations, to declare and adjudge that the
capture was unlawful and without probable cause, and it is
therefore, in each case
Ordered, that the decree of the district court be
reversed, and the proceeds of the sale of the vessel, together with
the proceeds of any sale of her cargo, be restored to the claimant,
with damages and costs.
Page 175 U. S. 715
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN
and MR. JUSTICE McKENNA, dissenting:
The district court held these vessels and their cargoes liable
because not "satisfied that, as a matter of law, without any
ordinance, treaty, or proclamation, fishing vessels of this class
are exempt from seizure."
This Court holds otherwise not because such exemption is to be
found in any treaty, legislation, proclamation, or instruction
granting it, but on the ground that the vessels were exempt by
reason of an established rule of international law applicable to
them which it is the duty of the court to enforce.
I am unable to conclude that there is any such established
international rule, or that this Court can properly revise action
which must be treated as having been taken in the ordinary exercise
of discretion in the conduct of war.
In cannot be maintained "that modern usage constitutes a rule
which acts directly upon the thing itself by its own force, and not
through the sovereign power." That position was disallowed in
Brown v. United
States, 8 Cranch 110,
12 U. S. 128,
and Chief Justice Marshall said:
"This usage is a guide which the sovereign follows or abandons
at his will. The rule, like other precepts of morality, of
humanity, and even of wisdom, is addressed to the judgment of the
sovereign, and although it cannot be disregarded by him without
obloquy, yet it may be disregarded. The rule is in its nature
flexible. It is subject to infinite modification. It is not an
immutable rule of law, but depends on political considerations
which may continually vary."
The question in that case related to the confiscation of the
property of the enemy on land within our own territory, and it was
held that property so situated could not be confiscated without an
act of Congress. The Chief Justice continued:
"Commercial nations in the situation of the United States have
always a considerable quantity of property in the possession of
their neighbors. When war breaks out, the question what shall be
done with enemy property in our country is a
Page 175 U. S. 716
question rather of policy than of law. The rule which we apply
to the property of our enemy will be applied by him to the property
of our citizens. Like all other questions of policy, it is proper
for the consideration of a department which can modify it at will,
not for the consideration of a department which can pursue only the
law as it is written. It is proper for the consideration of the
legislature, not of the executive or judiciary."
This case involves the capture of enemy's property on the sea,
and executive action, and if the position that the alleged rule
ex proprio vigore limits the sovereign power in war be
rejected, then I understand the contention to be that by reason of
the existence of the rule, the proclamation of April 26 must be
read as if it contained the exemption in terms, or the exemption
must be allowed because the capture of fishing vessels of this
class was not specifically authorized.
The preamble to the proclamation stated, it is true, that it was
desirable that the war "should be conducted upon principles in
harmony with the present views of nations and sanctioned by their
recent practice," but the reference was to the intention of the
government "not to resort to privateering, but to adhere to the
rules of the Declaration of Paris," and the proclamation spoke for
itself. The language of the preamble did not carry the exemption in
terms, and the real question is whether it must be allowed because
not affirmatively withheld -- or, in other words, because such
captures were not in terms directed.
These records show that the Spanish sloop
Paquete
Habana "was captured as a prize of war by the U.S.S.
Castine" on April 25, and "was delivered" by the
Castine's commander "to Rear Admiral Wm. T. Sampson
(commanding the North Atlantic Squadron)," and thereupon "turned
over" to a prize master with instructions to proceed to Key
West.
And that the Spanish schooner
Lola "was captured as a
prize of war by the U.S.S.
Dolphin," April 27, and "was
delivered" by the
Dolphin's commander "to Rear Admiral Wm.
T. Sampson (commanding the North Atlantic Squadron)," and thereupon
"turned over" to a prize master with instructions to proceed to Key
West.
Page 175 U. S. 717
That the vessels were accordingly taken to Key West and there
libeled, and that the decrees of condemnation were entered against
them May 30.
It is impossible to concede that the Admiral ratified these
captures in disregard of established international law and the
proclamation, or that the President, if he had been of opinion that
there was any infraction of law or proclamation, would not have
intervened prior to condemnation.
The correspondence of April 28, 30, between the Admiral and the
Secretary of the Navy, quoted from in the principal opinion, was
entirely consistent with the validity of the captures.
The question put by the Admiral related to the detention as
prisoners of war of the persons manning the fishing schooners
"attempting to get into Havana." Noncombatants are not so detained
except for special reasons. Sailors on board enemy's trading
vessels are made prisoners because of their fitness for immediate
use on ships of war. Therefore the Admiral pointed out the value of
these fishing seamen to the enemy, and advised their detention. The
Secretary replied that if the vessels referred to were "attempting
to violate blockade," they were subject "with crew" to capture, and
also that they might be detained if "considered likely to aid
enemy." The point was whether these crews should be made prisoners
of war. Of course, they would be liable to be if involved in the
guilt of blockade running, and the Secretary agreed that they might
be on the other ground in the Admiral's discretion.
All this was in accordance with the rules and usages of
international law, with which, whether in peace or war, the naval
service has always been necessarily familiar.
I come then to examine the proposition
"that at the present day, by the general consent of the
civilized nations of the world and independently of any express
treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor
and industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their
implements and supplies,
Page 175 U. S. 718
cargoes, and crews, unarmed, and honestly pursuing their
peaceful calling of catching and bringing in of fresh fish, are
exempt from capture as prize of war."
This, it is said, is a rule
"which prize courts, administering the law of nations, are bound
to take judicial notice of, and to give effect to, in the absence
of treaty or other public act of their own government."
At the same time, it is admitted that the alleged exemption does
not apply
"to coast fishermen or their vessels if employed for a warlike
purpose or in such a way as to give aid or information to the
enemy, nor when military or naval operations create a necessity to
which all private interests must give way,"
and further that the exemption has not
"been extended to ships or vessels employed on the high sea in
taking whales or seals, or cod or other fish which are not brought
fresh to market, but are salted or otherwise cured and made a
regular article of commerce."
It will be perceived that the exceptions reduce the supposed
rule to very narrow limits, requiring a careful examination of the
facts in order to ascertain its applicability, and the decision
appears to me to go altogether too far in respect of dealing with
captures directed or ratified by the officer in command.
But were these two vessels within the alleged exemption? They
were of twenty-five and thirty-five tons burden, respectively. They
carried large tanks in which the fish taken were kept alive. They
were owned by citizens of Havana, and the owners and the masters
and crew were to be compensated by shares of the catch. One of them
had been two hundred miles from Havana, off Cape San Antonio, for
twenty-five days, and the other for eight days off the coast of
Yucatan. They belonged, in short, to the class of fishing or
coasting vessels of from five to twenty tons burden, and from
twenty tons upwards, which, when licensed or enrolled as prescribed
by the Revised Statutes, are declared to be vessels of the United
States, and the shares of whose men, when the vessels are employed
in fishing, are regulated by statute. They were engaged in what
were substantially commercial ventures, and the mere fact that the
fish were kept alive by contrivances
Page 175 U. S. 719
for that purpose -- a practice of considerable antiquity -- did
not render them any the less an article of trade than if they had
been brought in cured.
I do not think that, under the circumstances, the considerations
which have operated to mitigate the evils of war in respect of
individual harvesters of the soil can properly be invoked on behalf
of these hired vessels as being the implements of like harvesters
of the sea. Not only so as to the owners, but as to the masters and
crews. The principle which exempts the husbandman and his
instruments of labor exempts the industry in which he is engaged,
and is not applicable in protection of the continuance of
transactions of such character and extent as these.
In truth, the exemption of fishing craft is essentially an act
of grace, and not a matter of right, and it is extended or denied
as the exigency is believed to demand.
It is, said Sir William Scott, "a rule of comity only, and not
of legal decision."
The modern view is thus expressed by Mr. Hall:
"England does not seem to have been unwilling to spare fishing
vessels so long as they are harmless, and it does not appear that
any state has accorded them immunity under circumstances of
inconvenience to itself. It is likely that all nations would now
refrain from molesting them as a general rule, and would capture
them so soon as any danger arose that they or their crews might be
of military use to the enemy, and it is also likely that it is
impossible to grant them a more distinct exemption."
In the Crimean war, 1854-55, none of the orders in council, in
terms, either exempted or included fishing vessels, yet the allied
squadrons swept the Sea of Azof of all craft capable of furnishing
the means of transportation, and the English admiral in the Gulf of
Finland directed the destruction of all Russian coasting vessels
not of sufficient value to be detained as prizes except "boats or
small craft which may be found empty at anchor, and not
trafficking."
It is difficult to conceive of a law of the sea of universal
obligation to which Great Britain has not acceded. And I
Page 175 U. S. 720
am not aware of adequate foundation for imputing to this country
the adoption of any other than the English rule.
In his lectures on International Law at the Naval Law College,
the late Dr. Freeman Snow laid it down that the exemption could not
be asserted as a rule of international law. These lectures were
edited by Commodore Stockton and published under the direction of
the Secretary of the Navy in 1895, and, by that department, in a
second edition, in 1898, so that in addition to the well known
merits of their author, they possess the weight to be attributed to
the official imprimatur. Neither our treaties nor settled practice
are opposed to that conclusion.
In view of the circumstances surrounding the breaking out of the
Mexican war, Commodore Conner, commanding the Home Squadron, on May
14, 1846, directed his officers, in respect of blockade, not to
molest "Mexican boats engaged exclusively in fishing on any part of
the coast," presumably small boats in proximity to the shore, while
on the Pacific coast, Commodore Stockton, in the succeeding August,
ordered the capture of "all vessels under the Mexican flag."
The treaties with Prussia of 1785, 1799, and 1828, and of 1848
with Mexico, in exempting fishermen, "unarmed and inhabiting
unfortified towns, villages, or places," did not exempt fishing
vessels from seizure as prize, and these captures evidence the
convictions entertained and acted on in the late war with
Spain.
In is needless to review the speculations and repetitions of the
writers on international law. Ortolan, De Boeck, and others admit
that the custom relied on as consecrating the immunity is not so
general as to create an absolute international rule; Heffter,
Calvo, and others are to the contrary. Their lucubrations may be
persuasive, but not authoritative.
In my judgment, the rule is that exemption from the rigors of
war is in the control of the Executive. He is bound by no immutable
rule on the subject. It is for him to apply, or to modify, or to
deny altogether such immunity as may have been usually
extended.
Page 175 U. S. 721
Exemptions may be designated in advance or granted according to
circumstances, but carrying on war involves the infliction of the
hardships of war, at least to the extent that the seizure or
destruction of enemy's property on sea need not be specifically
authorized in order to be accomplished.
Being of opinion that these vessels were not exempt as matter of
law, I am constrained to dissent from the opinion and judgment of
the Court, and my brothers HARLAN and McKENNA concur in this
dissent.
-----
On January 29, 1900, the Court in each case, on motion of the
Solicitor General in behalf of the United States, and after
argument of counsel thereon, and to secure the carrying out of the
opinion and decree of this Court according to their true meaning
and intent, ordered that the decree be so modified as to direct
that the damages to be allowed shall be compensatory only, and not
punitive.